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PRELIMINARY STATEMENT *

STATEMENT OF FACTS *

ARGUMENT *

I. DEFENDANT ANDERSON SHARES JOINT TORTFEASOR LIABILITY WITH UNION CARBIDE FOR THE BHOPAL DISASTER *

II. DEFENDANT ANDERSON SHARES CRIMINAL LIABILITY FOR UNION CARBIDE’S CULPABLE CONDUCT *

III. PLAINTIFFS’ CLAIMS AGAINST DEFENDANT ANDERSON ARE NOT PRECLUDED *

IV. PLAINTIFFS HAVE ADEQUATELY STATED CLAIMS FOR INTERNATIONAL LAW VIOLATIONS UNDER THE ALIEN TORT CLAIMS ACT *

A. PLAINTIFFS’ CRIMES AGAINST HUMANITY CLAIMS ARE ACTIONABLE *

B. PLAINTIFFS’ ENVIRONMENTAL HUMAN RIGHTS CLAIMS ARE ACTIONABLE. *

1. State Practice Establishes That a Universal, Obligatory and Definable Norm of Customary International Law Prohibits Defendants’ Actions *

2. The Sources Cited By Plaintiffs Constitute State Practice or Evidence of State Practice Demonstrating the Existence of Customary Norms *

3. Plaintiffs’ Claims Do Not Interfere With India’s Environmental Policies *

C. PLAINTIFFS’ RIGHT TO LIFE CLAIMS ARE ACTIONABLE *

CONCLUSION *

PRELIMINARY STATEMENT

Plaintiffs, by their attorneys, submit this memorandum of law in opposition to Defendant Warren Anderson’s ("Anderson") motion to dismiss the amended complaint, deny class certification and/or for summary judgment. In response to Defendant’s motion, Plaintiffs hereby incorporate by reference all of the legal arguments and evidentiary material in support thereof contained in Plaintiffs’ memorandum of law in opposition to Union Carbide’s motion to dismiss, deny class certification and/or for summary judgment. Defendant essentially adopts, in their entirety, the contentions and rationales advanced by Union Carbide in its motion to dismiss, deny class certification and/or for summary judgment, with one exception. That exception is the unfounded contention that "plaintiffs have not stated any claims against Anderson." Def. Mem. at 1. As demonstrated herein, however, Plaintiffs have clearly asserted all of the claims in the Amended Class Action Complaint ("Am. Cmpt.") against both Anderson and Union Carbide. Further, Anderson is liable under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. 1350, for violations of international law based on his personal role as the decision- maker that ratified Union Carbide’s unlawful conduct and is also responsible for formulating the policies and decisions which led to the contamination of soil and water in and around the Union Carbide India Limited ("UCIL") plant.

STATEMENT OF FACTS

Defendant’s moving papers suggest that "the Amended Complaint does not allege any basis for holding Anderson liable for the claims alleged" because it is claimed that "[a]part from paragraph 36… plaintiffs barely mention Anderson." Def. Mem. at 2. The claim is demonstrably false. Plaintiffs have adequately alleged a basis for holding Defendant liable for each and every claim asserted in the Amended Class Action Complaint. Plaintiffs assert that, pursuant to Union Carbide’s own internal corporate structure and policies, Anderson, as both Chairman of the Board and Chief Executive Officer of Union Carbide at all relevant times, was personally involved in the management, supervision and operation of the Bhopal plant. Am. Cmpt. 72. Plaintiffs also maintain that Anderson had direct, personal knowledge of each and every serious incident and fatality at the Union Carbide India Limited ("UCIL") plant leading up to the Bhopal Disaster which would have put him clearly on notice as to the extremely serious risks posed by the facility. According to Union Carbide’s own internal policies, Anderson would have had firsthand knowledge about the abominable state of safety at the UCIL plant, including but not limited to each serious safety incident or fatality that took place there which, according to Carbide’s policy manuals, "will be reviewed by the Chief Executive Officer." Am. Cmpt. 70. In fact, Plaintiffs allege that Anderson not only had knowledge of the grave threat posed to Plaintiffs and members of the putative Class but had, by his own admission, the authority to prevent the catastrophe which took place in Bhopal. Am. Cmpt. 71. Defendant’s conscious decision not to use his authority to prevent the Bhopal Disaster was a critical factor in causing the catastrophe which ultimately resulted. Indeed, Anderson has publicly admitted that it was Union Carbide’s responsibility to design the UCIL plant with a series of redundancies and safeguards which could have prevented or at least greatly mitigated the disaster which eventually took place in Bhopal. Am. Cmpt. 65. For example, in response to inquiries from journalists about his suggestion of sabotage at UCIL, Anderson stated:

Well, that’s always a potential and you have to worry about it. That’s why you need the redundancy… Built into the safety system are a whole series of capabilities that can take care of whatever inadvertent action or co-mission has taken place so you’re not all dependent on just one item to either make it safe or make it unsafe.

Pursuant to Union Carbide’s internal procedures and corporate structure, Defendant Anderson exercised managerial control and supervision over the operations of UCIL through a single executive intermediary. This is confirmed by the fact that the Bhopal plant was directly under the managerial control and supervision of the Director of Union Carbide’s Agricultural Products Corporation ("UCAPC") who, in turn, was an Executive Vice-President of Union Carbide, the parent corporation, and answered directly to Defendant Warren Anderson. Thus, Union Carbide’s own corporate structure, and the rather short ‘chain of command’ within that structure, confirms Anderson’s personal authority and involvement in the management and control of UCIL’s operations. Am. Cmpt. 72. Indeed, Union Carbide had been alerted to the need for an emergency evacuation plan at UCIL as early as 1979 through a safety audit’s recommendations, but – despite numerous leaks in Bhopal affecting the nearby neighborhoods of which Anderson would have been aware due to internal policy and procedure – chose not to act on that recommendation for another 5 years. See, Affidavit of Rajkumar Keswani ("Keswani Aff.") 4, 5(c), 8, 11.

That Anderson was aware of and involved in key decisions concerning the design, safety and operations of UCIL is further demonstrated by his numerous public representations about the Bhopal facility in general and about its safety systems in particular. For instance, when asked by Rep. Henry Waxman of the Congressional Subcommittee on Health and Environment whether or not he personally believed the Bhopal plant was safe before the occurrence of the catastrophe on December 2-3, 1984, Anderson conceded that Union Carbide, under his direction, operated the UCIL facility and that he personally had knowledge about the safety of the Bhopal plant:

"Yes," responded Anderson. "We had operated it safely for seven years. It never entered my mind that such a thing could happen."

Further, when questioned by journalists about Union Carbide’s 50.9% ownership of UCIL at a March 1985 press conference, Anderson confirmed the importance of maintaining majority ownership as a means to perpetuate Union Carbide’s complete and pervasive control over its Indian affiliate:

Suppose we were a 40 percent owned company or 35 percent owned company, raises some inquiries on our part, do we want to participate around the world where you have less than absolute control?

Such firsthand involvement and absolute control by Union Carbide and Anderson in the operations of UCIL was fully consistent with Carbide’s internal policies. Am. Cmpt. 69-71, 74. Indeed, Anderson acknowledged that he was involved and assumed personal responsibility for safety issues:

I am telling you if I knew personally of any location in the corporate world of Union Carbide that had an unsafe operation it would be shut down.

Plaintiffs have alleged that Union Carbide’s own internal policies required the parent corporation to set standards in terms of safety and emergency-preparedness. Am. Cmpt. 69, 70, 71. The affidavit of Rajkumar Keswani ("Keswani Aff.") further points to specific instances of Union Carbide’s detailed micro-management of the operations of UCIL during, for example August of 1984, the time period immediately preceding the catastrophe. Keswani Aff. 5 (a), (b), (c). As both Chairman of the Board and Chief Executive Officer, Anderson was directly involved, approved and ratified the double standards in design, safety and operations by which Union Carbide imposed at UCIL inferior and inherently dangerous conditions than it chose to establish at its Institute facility. Am. Cmpt. 81, 82.

Nevertheless, Anderson continued to maintain publicly that Union Carbide’s operations worldwide adhered to a common design, common safety standards and common operating procedures:

Somebody has to say that our safety standards in the US are identical to that in India or in Brazil or some place else. And that what they do here we have been doing for years: same equipment, same design, same everything.

Subsequently, Anderson’s representations were revealed to be patently false:

For one thing, other chemical companies contend that pesticides similar to those produced by Carbide in India can be made without large stockpiles of methyl isocyanate. Japan’s Sumimoto Chemical Co. produces such pesticides with other chemical reactions… Even a Union Carbide pesticide plant in France stores methyl isocyanate in many small cylinders, rather than the huge tanks used in Bhopal.

Based perhaps on his personal knowledge about those double standards, even before Union Carbide’s own investigation of the causes of the Bhopal Disaster had been completed, Anderson claimed unequivocally that a similar event at their operations in Institute was "inconceivable":

''We think we will find out that we can operate Institute, W.Va., without any concern by the people in the community that something will go awry,'' he [Anderson] said. 'We did it (produced MIC) for 17 years and we can do it for another 17 years…"

At least one Congressman, Rep. Henry Waxman, was perplexed enough by Union Carbide’s total confidence in the safety of operations at their Institute facility that he publicly demanded an explanation from Anderson himself:

''Although your letter to me stresses that your investigation is still incomplete, and that reports about the cause of the tragedy are only speculation, I understand that last week you told a group of Union Carbide employees that a tragedy such as the one that happened in Bhopal was 'inconceivable' at Institute,'' Waxman wrote.

''How can the Bhopal tragedy be 'inconceivable' at Institute when you don't know how the Bhopal tragedy even occurred?'' he asked.

One reason that such a scenario was "inconceivable" to Anderson was that he knew of the deliberate under-design of the grossly inadequate safety systems of UCIL in contrast to the fully functional and effective safety systems in place at Institute. The fact that an inspection of the Institute plant conducted after the Bhopal Disaster by the Occupational Health and Safety Administration ("OSHA") demonstrated the adequacy of Union Carbide’s precautions at that facility further corroborates the deliberateness of this double standard:

''We can say at this point that the necessary engineering control measures have been identified to ensure that the possibility of a catastrophic release of MIC from an uncontrolled reaction is extremely remote,'' said Jane Matheson, the deputy assistant labor secretary who runs OSHA.

She noted that an inspection by OSHA investigators after the Bhopal accident found backup safety systems designed to prevent a serious accident with methyl isocyanate.

What Anderson called "the combination of circumstances that led to Bhopal" included not only the deliberate under-designing of the Bhopal plant’s safety devices, such as the vent gas scrubber which could only eliminate less than a third of the material stored (even if it had been operational), but even extended to monitoring systems:

Union Carbide said it had not installed a computerised safety system at its plant in India despite using it at a sister plant in the United States. Mr. Jackson Browning, Union Carbide’s corporate director of health, safety and environmental affairs, said a computerised early-warning system was available that would have detected a pressure build-up which led to the leak of poison gas at the Indian plant.

Another key factor in that combination of circumstances was the aggressive and reckless economy drive by Union Carbide at the Bhopal plant which, as a result of Union Carbide’s complete disregard for safety, was already an extremely dangerous instrumentality. In fact, Union Carbide has publicly acknowledged this policy of cost-cutting. As is clear from his public statements, Anderson was personally aware of and involved in this economy drive of Union Carbide’s "Bhopal Task Force" to salvage the plant’s financial viability:

Ironically, the company was also trying to dispose of its India operations. "We were looking to see if other manufacturers could utilize or take over our facilities, but we hadn’t gotten very far down that road," the chairman says.

Despite these public statements evidencing Union Carbide’s and his own personal involvement in the operations of UCIL, it was not long before Anderson sought to allocate blame for the catastrophe away from himself and Union Carbide and onto UCIL’s Indian management, claiming that they had operated the facility in violation of established safety procedures:

Mr. ANDERSON: I didn't know. Appropriate people in the organization should

have known. It's very difficult for me to know everything that's going on

everywhere. So we have an organizational system that picks these things up, and

where that chain was broken was at the India plant. We did not know in Union

Carbide that this was in fact going on, and what I just mentioned earlier, our

speed-up of audits, our intensification of training programs, etcetera, we say

that'll never happen again.

REPORTER: Sir, you said "their plant," "their people." Did they lie to you

about safety conditions there? Did they --

Mr. ANDERSON: No, we have no reason to believe that anybody lied to us.

In this way, as more information and facts became available about the catastrophe, the onus of responsibility shifted over time from an allegedly fortuitous combination of circumstances to UCIL’s Indian management to a Sikh terrorist group and, ultimately, to an unidentified "disgruntled employee" which Defendants have to date declined to name.

Thus, based on the foregoing, Defendant Anderson controlled and participated in Union Carbide’s actions and omissions that culminated in the Bhopal Disaster. In fact, Plaintiffs have alleged and will demonstrate that, as Chief Executive Officer and Chairman, Anderson specifically directed, sanctioned and actively participated in all of the crucial corporate decisions and policies which were responsible for causing the catastrophe in Bhopal and was also the chief architect and proponent of Union Carbide’s scheme of disinformation that sought, by disguising its complete control of UCIL, to evade culpability for causing the Bhopal Disaster.

ARGUMENT

 

DEFENDANT ANDERSON SHARES JOINT TORTFEASOR LIABILITY
WITH UNION CARBIDE FOR THE BHOPAL DISASTER

Defendant Anderson’s reliance on the principal that a mere "official relationship" with a corporate tortfeasor is insufficient to establish the tort liability of an officer is unavailing because it simply ignores Plaintiffs’ substantive allegations. As the Second Circuit recognizes, "it has long been established, . . . , that a corporate officer who commits or participates in a tort, even if it is in the course of his duties on behalf of the corporation, may be held individually liable . . . ." Lopresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir. 1997).

More significantly, Anderson did not merely maintain an "official relationship" with Union Carbide. He controlled Union Carbide as the Chief Executive Officer and Chairman of the Board. As the Second Circuit observed:

New York courts have held that a corporate officer who controls corporate conduct and thus is an active individual participant in that conduct is liable for the torts of the corporation. See State v. Ole Olsen, Ltd., 35 N.Y.2d 979, 324 N.E.2d 886, 365 N.Y.S.2d 528 (1975); LaLumia v. Schwartz, 23 A.D.2d 668, 669, 257 N.Y.S.2d 348, 350 (1965). We need not address whether he is liable merely as an officer of [the corporate defendant], for it is beyond dispute that [the individual defendant] specifically directs, sanctions, and actively participates in [the corporate defendant’s] maintenance of the nuisance. See also Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 907 (1st Cir. 1980) (citing federal cases pronouncing this rule of liability for corporate officers).

 

New York v. Shore Realty Corp., 759 F.2d 1032, 1052 (2d Cir. 1985). Moreover, Plaintiffs’ state law claims for environmental contamination sound in nuisance law, in addition to claims for violations of international law. Affidavit of Shahnawaz Khan ("Khan Aff.") 3, 4, 6. Thus, the principal of controlling officer responsibility makes Anderson’s liability especially clear in these circumstances, since:

This general rule is particularly appropriate in the public nuisance context where "’everyone who . . . participates in the . . . maintenance . . . of a nuisance are liable jointly and severally.’" Schenectady Chemicals, 117 Misc. 2d at 966, 459 N.Y.S.2d at 976 (quoting 17 Carmody-Wait 2d Actions for Waste, Nuisance and Trespass @ 107:59, at 334 (1979); accord Caso v. District Council 37, American Federation of State, County & Municipal Employees, 43 A.D.2d 159, 163, 350 N.Y.S.2d 173, 178 (1973).

759 F.2d at 1052-53. Further, Plaintiffs’ claims based on violations of customary international law arise from and relate to Union Carbide’s unresolved criminal liability, and, as demonstrated herein, Anderson also shares Union Carbide’s criminal responsibility for perpetrating the Bhopal Disaster.

DEFENDANT ANDERSON SHARES CRIMINAL LIABILITY
FOR UNION CARBIDE’S CULPABLE CONDUCT

Plaintiffs’ allegations are adequate to establish a claim against Anderson under the ATCA for the underlying criminal conduct of Union Carbide and Anderson. The conduct by Anderson that underlies Plaintiffs’ ATCA claims bears striking similarity to conduct that has been previously found in U.S. courts to constitute an outright criminal offence, such as involuntary manslaughter and negligent homicide, in addition to intentional tort.

In addressing corporate and officer criminal liability, the Sixth Circuit had occasion to analyze an Illinois criminal action, People v. O’Neil, in which the corporate defendant and several corporate officers were convicted of involuntary homicide for industrial fatalities that resulted from the victims’ exposure to toxic gases. The corporate officers’ actions and omissions at issue in People v. O’Neil are markedly similar to those by Union Carbide’s officers, including Anderson, that lead to the Bhopal Gas Disaster. In commenting on O’Neil, the Sixth Circuit noted that:

An intentional tort is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. It does not matter whether the employer wishes the injury would not occur or does not care whether it occurs. If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well.

 

Laundree v. AMCA Int’l, 908 F.2d 43, 44 (6th Cir. 1990). The Sixth Circuit summarized the criminal court’s findings in O’Neil as follows:

Film Recovery Systems went into the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas would bubble up from the vats and there was inadequate ventilation. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer's response was to move the executive offices while tripling the size of the operations. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poisoning. The corporate officers were convicted of involuntary manslaughter.

908 F.2d at 46.

The Illinois appellate court also had occasion to analyze the O’Neil criminal action:

The grand jury charged [five] defendants with murder, stating that, as individuals and as officers and high managerial agents of Film Recovery, they had, on February 10, 1983, knowingly created a strong probability of Golab's death. Generally, the indictment stated the individual defendants failed to disclose to Golab that he was working with substances containing cyanide and failed to advise him about, train him to anticipate, and provide adequate equipment to protect him from attendant dangers involved. The grand jury charged Film Recovery . . . with involuntary manslaughter stating that, through the reckless acts of their officers, directors, agents, and others, all acting within the scope of their employment, the corporate entities had, on February 10, 1983, unintentionally killed Golab.

 

People v. O'Neil, 194 Ill. App. 3d 79, 82-83; 550 N.E.2d 1090, 1092-93 (App. Ct. Ill. 1990) (reversing and remanding convictions solely due to inconsistency of charges for murder and manslaughter, which require mutually exclusive states of mind). In support of the convictions,

The trial judge found that "the mind and mental state of a corporation is the mind and mental state of the directors, officers and high managerial personnel because they act on behalf of the corporation for both the benefit of the corporation and for themselves." Further, "if the corporation's officers, directors and high managerial personnel act within the scope of their corporate responsibilities and employment for their benefit and for the benefit of the profits of the corporation, the corporation must be held liable for what occurred in the work place."

194 Ill. App. 3d at 83; 550 N.E.2d 1090 at 93.

The parallels to the Bhopal Disaster are striking. Both tragedies were caused by a series of actions taken by management within the purview of their corporate responsibilities, purportedly advancing their corporate goals. Both tragedies involved deliberate corporate actions taken despite accurate and credible warnings of imminent danger. See, Keswani Aff. 2, 5(a), 6, 8, 10, 11. Both tragedies were caused by a gross disproportionality between each plant’s production capacity and the safety systems implemented, where the plant design and policies led to production and storage capacities that far exceeded the stated safety limits which were only adequate for much smaller volumes of hazardous substances. Both tragedies were worsened by management’s systematic failures to inform the victims of the hazardous conditions to which they were exposed, and their failures to train the potential victims as to how to respond to and protect themselves from the dangers posed by the plant conditions.

As demonstrated herein, however, the transboundary nature, sustained level of deliberate indifference to an extremely grave risk and mass scale of the Bhopal catastrophe clearly give it the large dimension of an international law violation. Even if a finding of criminal liability for corporate and executive actions and omissions should be invoked in only the most extreme of circumstances, the Bhopal Disaster would still qualify as few other industrial tragedies possibly could.

PLAINTIFFS’ CLAIMS AGAINST DEFENDANT
ANDERSON ARE NOT PRECLUDED

Defendant’s contention that all of Plaintiffs’ claims against him are precluded by virtue of Union Carbide’s settlement with the Government of India, Def. Mem. at 2, are unavailing for precisely the same reasons as they were for Union Carbide. See, Affidavit of Professor Iqbal Ishar ("Ishar Affidavit"). Plaintiffs and Justice Bhagwati have demonstrated that, under Indian law, Plaintiffs’ claims for violations of international law are plainly outside the scope of the settlement and, furthermore, that Defendants have breached the very settlement upon which they now purport to rely. Ishar Aff. 2. Finally, all of Plaintiffs’ common law claims for contamination of the soil and factory around the plant in India did not arise from the Bhopal Disaster and, therefore, cannot be and were never subsumed within that settlement.

Nor does the Bhopal (Processing of Claims) Act 1985 ("Bhopal Act" or "Act") preclude Plaintiffs’ claims in this action. Plaintiffs have demonstrated that the Supreme Court of India, in its definitive interpretation of the Bhopal Act, specifically concluded that Section 3 of the Act cannot come into force by itself and must be invoked by the Indian government in order for its provisions regarding the government’s authority to represent claimants to be applicable in courts abroad. Opp. Mem. at 3-4. This is as true for actions pending before the commencement of the Bhopal Act as well as for those which may be instituted after its commencement:

Therefore, in cases where such suits or proceedings have been instituted before the commencement of the Act in any Court or before any authority outside India, the section by its own force will not come into force in substituting the Central Government in place of the victims [or] their heirs and legal representatives, but the Central Government has been given the right to act in place of, or along with, such claimant, provided such Court or other authority so permits. It is to have adherence and conformity with the procedure of the countries or places outside India, where suits or proceedings are to be instituted or have been instituted.

 

Charan Lal Sahu v. Union of India et al., 1990 AIR (S.C.) 1480, 1504 (emphasis added).

PLAINTIFFS HAVE ADEQUATELY STATED CLAIMS FOR INTERNATIONAL
LAW VIOLATIONS UNDER THE ALIEN TORT CLAIMS ACT

The Alien Tort Claims Act permits aliens to sue for torts committed in violation of the laws of nations, (i.e. customary international law). 28 U.S.C. 1350. Customary international law results from a consistent state practice followed from a sense of legal obligation or opinio juris. Restatement (Third) of Foreign Relations Law of the United States, ("Restatement"), 102(2). A "broad reading of the Alien Tort Act [is] settled as the law of this Circuit." Kadic v. Karadzic, 74 F.3d 377, 378 (2d Cir. 1996). Thus, where as here an alien sues for a violation of "well-established, universally recognized norms of international law," that claim is actionable. Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995). As the attached affidavits of Plaintiffs experts’ on customary international law demonstrate, Plaintiffs have in fact stated a claim for violations of customary international law actionable under the ATCA. See, Affidavits of Prof. Naomi Roht-Arriaza ("Roht-Arriaza Aff.") and Prof. Chaloka Beyani ("Beyani Aff.") and Supplemental Affidavit of Jon M. Van Dyke ("Supp. Van Dyke Aff.").

 

PLAINTIFFS’ CRIMES AGAINST HUMANITY CLAIMS ARE ACTIONABLE

Crimes against humanity are customary international law violations actionable under the ATCA, even when committed by private parties. Kadic, 70 F.3d at 236. Plaintiffs have stated a crimes against humanity claim. Opp. Mem. at 18-21. It has been clear since Nuremberg that:

[a]ny manslaughter or act which can bring about death, committed in peace-time as well as in war-time, against individuals or groups of individuals, because of their race, nationality, religion or opinions, constitutes a crime against humanity.

 

Flick, 14 Int’l. L. Rep. at 267. This holding not only reflects customary international law as it existed at the time, but also as it exists today. Prosecutor v. Dusko Tadic, 36 I.L.M. 908, 958 703-07 (1997)(widespread manslaughter with racial discrimination is a crime against humanity); see also ILC Draft Code of Crimes Against the Peace and Security of Mankind, Art. 18, Comm. 11 (1996)(crime includes discrimination that denies fundamental rights). Anderson and UCC’s deliberate, racially discriminatory disregard for the lives of the people of Bhopal proximately and foreseeably caused thousands of deaths. Am. Cmpt. 50-51. It was a crime against humanity.

Defendants err in suggesting that an entity must exercise control over territory to commit crimes against humanity. UCC Mem. at 17, n. 6. In Tadic, the Yugoslav Tribunal held that crimes against humanity can be committed by "any organization or group" and "do not even have to be directed or instigated by a group in permanent control of territory." 36 I.L.M. at 945. Moreover, the fact that Defendants’ acts occurred within the context of commercial activities is irrelevant. Crimes against humanity can be committed for purely personal motives. Tadic, 38 I.L.M. at 1568, 248, 270.

PLAINTIFFS’ ENVIRONMENTAL HUMAN RIGHTS
CLAIMS ARE ACTIONABLE.

State Practice Establishes That a Universal, Obligatory and Definable Norm of Customary International Law Prohibits Defendants’ Actions

Overwhelming state practice compels the conclusion that Plaintiffs’ environmental rights claim is based upon a universal, obligatory and definable customary international human rights norm. Pl. UCC Mem. at 21-26. That norm is narrow, but clearly defined to prohibit taking actions that may be expected to cause long-term, widespread and severe environmental damage that prejudices the health or survival of a population, Kiss/Shelton Aff. 2; Roht-Arriaza Aff. 9, or that deprive a people of its means of subsistence. International Covenant on Civil and Political Rights, Art. 1. Such harms are prohibited if they are of purely intrastate origin, Kiss/Shelton Aff. 1, 26-47; Roht-Arriaza Aff. 9, and customary law further prohibits activities planned or undertaken in a state that cause massive environmental harms in another. Kiss/Shelton Aff. 8-10; Roht-Arriaza Aff. 9. Moreover, such harms are prohibited irrespective of whether the perpetrator is a state actor, Kiss/Shelton Aff. 3, 7, 14-25, 45-47; Roht-Arriaza Aff. 9, although in this case Plaintiffs have adequately alleged that Defendants are state actors. Opp. Mem. at 26-29; Roht-Arriaza Aff. 1, 2; Supp. Van Dyke Aff. 19-20, 23.

Numerous types of state practice demonstrate the existence of this customary norm. For example, the world’s nations have repeatedly, universally recognized that individuals have a right to an environment adequate for survival. This occurred first in 1972, when 114 states, including the U.S., adopted the Stockholm Declaration. Kiss/Shelton Aff. 26, 34. Such recognition was re-affirmed by over 178 nations, including the U.S., in the Rio Declaration, by consensus in the U.N. General Assembly (G.A. Res. 45/94), by the UN Human Rights Committee and in a number of international and regional agreements. Kiss/Shelton Aff. 21, 26, 35-38 and n.7.

Longstanding customary international law also reflects a consistent state practice of recognizing obligatory protections of the rights to life, personal security and health. Kiss/Shelton Aff. 1, 28-33, 43. These rights are universally understood to protect individuals from severe environmental degradation. Id. at 1, 26-28, 43. Indeed, the Inter-American Commission on Human Rights, the U.N. Human Rights Committee, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights have all expressly concluded that environmental degradation can violate these obligatory international human rights norms. Id. at 29-33, 43. The existence of customary international rights to life, personal security and health that can be violated through acts causing severe environmental harm further demonstrates that Plaintiffs have alleged a violation of a universal and obligatory norm.

The corpus of international environmental law constitutes voluminous additional state practice supporting Plaintiffs’ claims. That body of law encompasses a multitude of treaties that are substantially concerned with protecting the human rights to life and health from violation through environmental damage. Kiss/Shelton Aff. 26, 27. Indeed, such concern is often made explicit in international environmental law instruments. Kiss/Shelton Aff. 7, 31 and n.6; Human Rights and the Environment: Final Report by Mrs. Fatma Zohra Ksentini, Special Rapporteur, U.N. ESCOR, Hum.Rts.Comm., U.N.Doc.E/ CN.4/ Sub.2/1994/9 (1994)("Ksentini Report") 183 and n. 99. States’ consistent practice of assuming international obligations to protect the environment, within and across borders and from both state and non-state action, provides further evidence that the right to be free from massive, life threatening environmental harm is universally recognized and obligatory. Opp. Mem. at 22; Kiss/Shelton Aff. 3, 4-7, 14-25, 40-42, 45-47.

Consistent state practice with respect to the laws of war further demonstrates that the right to be free from massive, life-threatening environmental damage is obligatory. Over 145 states are parties to the Protocol Additional (I) to the Geneva Conventions of 1949, which forbids acts that may be expected to cause such damage. Art. 55(1), 16 I.L.M. 1391 (1977). The U.N. General Assembly and the Security Council have also recognized that international law limits wartime environmental destruction. Kiss/Shelton Aff. 12. Wartime protections are international minimum standards. Id. Accordingly, states’ widespread recognition that they are obligated not to cause massive, life-threatening environmental damage during war demonstrates that this norm is afforded a high place in customary international law and a fortiori applies in peacetime. Id.

State domestic practice is also uniform in protecting the right to be free from severe environmental harm. Virtually all, if not all, nations have legal provisions safeguarding their citizens from at least some types of environmental harm, and at least ninety-nine states have enshrined such provisions in their constitutions. Kiss/Shelton Aff 40. Moreover, numerous domestic courts have found environmental damage infringes upon basic human rights. Kiss/Shelton Aff 39; Supp. Van Dyke Aff. 11. These laws and decisions do not reflect purely domestic concerns. States have repeatedly accepted international obligations to enact laws protecting their own environment and providing means of redress to victims of environmental degradation. Pl. Opp. at 23, and n.30; Kiss/Shelton Aff. 5, 6, 41-42 and nn. 8-9.

States thus have consistently recognized legal obligations prohibiting them and their citizens from destroying the environment, and a corresponding customary international law right to be free from massive, life threatening environmental damage. Kiss/Shelton Aff. 4, 39-42. Leading expert opinion confirms that customary law recognizes this right. Kiss/Shelton Aff. 27, 36. For example, the U.N. Special Rapporteur on Human Rights and the Environment exhaustively studied the relevant international law and state practice, and concluded that under customary international law, "[a]ll persons have the right to a secure, healthy and ecologically sound environment." Ksentini Report. at 75, Annex 1 princ.2; Kiss/Shelton Aff. 36. Similarly, in the context of determining which state acts constitute international crimes, the U.N.’s International Law Commission concluded over 20 years ago that state practice demonstrates that gravely endangering the human environment violates "particularly essential rules of general international law" and is such a crime. Report of the ILC on the work of its 28th Sess. Chapter III, 33, 34, 67, Y.B. of the I.L.C., 1976 vol. II, Part Two 109, 120-21 (1976)(commenting on I.L.C. Draft Code of State responsibility, Art. 19(3)(d)).

Plaintiffs have also demonstrated that the norm is definable. As noted above, rights applicable in war can usually be considered the minimum safeguards international law provides. Kiss/Shelton Aff. 11, 12. Even during war, international law bans acts that "may be expected to cause [widespread, long-term and severe damage] to the natural environment and thereby to prejudice the health or survival of the population." Protocol Additional (I) to the Geneva Conventions of 1949, art. 55(1) 16 I.L.M. 1391 (1977). Given that it is universally recognized that international law prohibits actions that may be expected to cause these same types of harms in peacetime, jurisdiction for violations of this standard lies under the ATCA. Kiss/Shelton Aff. 2, 12; Roht-Arriaza Aff. 9. Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights also provides a specific definition of conduct that is universally agreed to violate international law. Each states that "[i]n no case may a people be deprived of its own means of subsistence."

Defendants do not cite and Plaintiffs are unaware of any State that claims the legal right to take actions or to allow private parties to take actions that may be expected to cause long-term, widespread and severe environmental harm that prejudices the survival of a population or to deprive a people of their means of subsistence. The absence of such claims further supports the conclusion that these norms are universally considered obligatory. Filartiga, 630 F.2d at 884.

Defendants are thus simply wrong when they assert that the international community has yet to articulate discernible standards for adjudicating international environmental torts. UCC Mem. at 20. Beanal v. Freeport-McMoRan, 197 F.3d 161, 167 (5th Cir. 1999) is inapposite here. The Beanal court held only that a limited number of specific sources, namely an international environmental law textbook and the Rio Declaration, are devoid of discernible standards. Id. The Beanal decision contains no analysis of the sources Plaintiffs cite that demonstrate that international law does in fact contain discernible standards. Id. Indeed, it does not analyze any of the voluminous evidence of state practice cited by Plaintiffs, except the Rio Declaration. Id. Beanal provides no basis to dismiss Plaintiffs’ claims.

Plaintiffs’ claims are also actionable because Defendants’ tortious policies were planned and initiated in this forum. Am. Comp. 75, 77, 79-80, 83-95, 90; Keswani Aff. 5. Thus, Defendants violated the universally recognized prohibition on causing transboundary harms. Kiss/Shelton Aff. 8-10; Roht-Arriaza Aff. 9; see also Aguinda v. Texaco, 1994 U.S. Dist. LEXIS 4718 * 24-25 (S.D.N.Y. April 11, 1994)(recognizing ATCA claim may lie for severe environmental damage resulting from undertaking initiated in the U.S.); Restatement, Part VI, Introductory Note (where activities conducted in one state cause significant environmental effects in another, those harms are "transfrontier"). As the I.C.J. has held, "the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States. . . is now part of the corpus of international law." Gabcikovo-Nagymaros Project (Hungary-Slovakia), Judgment of 25 September 1997, 53. Private parties as well as states violate international law when they cause significant inter-state harms. Kiss/Shelton Aff. 3, 7, 8, 15-18, 20, 22-25. A victim of transboundary harms has a customary right to access to remedies in the state of the responsible party on an equal footing with in-state residents, Restatement, 602(2); Ksentini Report, 25; Kiss/Shelton Aff. 22 and n. 9, even where the responsible party is a private corporation. Restatement, 601, comment d. Indeed, U.S. courts have contributed to the state practice of hearing transboundary environmental cases against private parties. Thus, the fact that the torts at issue were initiated in the U.S. further demonstrates that Defendants violated international law.

In sum, state actors or private parties violate definable customary norms when they take actions that may be expected to cause the kind of environmental devastation Defendants inflicted upon Bhopal. This is particularly clear when those harms are transboundary. Thus, Plaintiffs have alleged torts "committed in violation of the laws of nations" for which the ATCA provides both jurisdiction and a remedy. Kadic, 70 F.3d at 239, 246.

The prohibitions on long-term, widespread, and severe harm that prejudices the health or survival of the population or harms that deprive a people of its means of subsistence are of very limited applicability. Moreover, in analyzing an ATCA claim, courts only consider whether the specific conduct alleged is prohibited. Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D.Mass. 1995); Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D.Cal. 1988). Here, the deliberate indifference of defendants killed thousands of people, and maimed of hundreds of thousands more. The torts also crossed boundaries, originating in the United States. Such conduct clearly violates international law. Plaintiffs are aware of no other man-made, peacetime environmental disaster causing analogous harm, with the possible exception of the Chernobyl nuclear release.

The Sources Cited By Plaintiffs Constitute State Practice or Evidence of State Practice Demonstrating the Existence of Customary Norms

As detailed above, a variety of sources establish that extensive state practice has created the customary environmental human rights norm upon which Plaintiffs rely. These sources include international and regional treaties, widely accepted declarations and U.N. resolutions, decisions of the International Court of Justice, opinions of the U.N. Human Rights Committee and of regional human rights bodies such as the European Court of Human Rights and the Inter-American Commission on Human Rights, states’ universal domestic practice, and the conclusions of leading experts such as the U.N. Special Rapporteur on Human Rights and the Environment and the International Law Commission. As the attached Declaration of International Law Experts on the Sources of Customary International Law ("Experts Decl.") and Wilson Affidavit make clear, all of these sources constitute state practice, or evidence of such practice, demonstrating the existence of a customary international norm. Indeed, they have repeatedly been held to be such by the Second Circuit and numerous other courts, as Plaintiffs’ experts detail. Experts Decl.; Wilson Aff.; see e.g. Kadic, 70 F.3d at 240-43; Filartiga, 630 F.2d at 880, 882-84.

Plaintiffs’ Claims Do Not Interfere With India’s Environmental Policies

Defendants suggest that Plaintiffs’ environmental rights claims would, in some unspecified manner, interfere with India’s environmental policies. UCC Mem. at 20-21. Indian policy, however, favors liability. The Indian Supreme Court has expressly held that the "right to life. . . includes the right of enjoyment of pollution-free water and air." Subhash Kumar v. State of Bihar, 1991 A.I.R. 420. India has also explicitly stated its view that international liability for transboundary harm lies with the operator controlling the activity. See Kiss/Shelton Aff. 24. Moreover, the indictment of the Defendants demonstrates that India considers their actions to be criminal. Plaintiffs’ claims would vindicate India’s policy of requiring perpetrators of crimes to compensate their victims. Opp. Mem. at 6. This Court should reject Defendants’ cynical plea for deference to Indian law when they have themselves flouted that law by absconding.

Defendants’ vague reference to Indian policy is also unavailing because Plaintiffs’ right to be free from massive, life threatening pollution is a norm of customary international human rights law. Kiss/Shelton Aff. 11, 26-43. International human rights norms limit states’ sovereignty. Filartiga, 630 F.2d at 885 (international law confers fundamental rights on all people vis-a-vis their governments); W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 A.J.I.L. 866, 869 (1990)("no serious scholar still supports the contention that internal human rights are ‘essentially within the domestic jurisdiction of any state’ and hence insulated from international law.") In particular, international human rights bodies have explicitly recognized that human rights norms limit a state’s freedom to permit environmental degradation. Defendants cannot absolve their liability by appealing to India’s environmental policies.

Defendants’ reliance on Beanal and Aguinda in this regard is misplaced. UCC Mem. at 20-21. Beanal looked only to sources of "international environmental law," and thus did not purport to apply international human rights norms. 197 F.3d at 167. Moreover, Plaintiffs’ claims are not based on U.S. environmental standards, so this Court need not be concerned that such standards would "displace environmental policies of other governments" Id. Aguinda is equally unavailing. The Court specifically distinguished cases in which conduct occurs "exclusively in a foreign country" from cases like Aguinda and the case at bar, in which "steps in the United States were an integral part of the events at issue." 1994 U.S. Dist. LEXIS 4718 *24-25. Accordingly, (and contrary to Defendants’ assertion), the Court refused to dismiss the case. Id. at *25.

PLAINTIFFS’ RIGHT TO LIFE CLAIMS ARE ACTIONABLE

The right to not be arbitrarily deprived of life is a universal and obligatory norm of customary international law. Roht-Arriaza Aff. 3; Supp. Van Dyke Aff. 6, 7. As noted above, Plaintiffs have adequately alleged that Defendants are state actors. Accordingly, if the right to life has a state action requirement, it would not preclude Plaintiffs’ claims.

The right to life is universally understood to prohibit killing through deliberate indifference or gross recklessness. Roht-Arriaza Aff. 4, 5; Supp. Van Dyke Aff. 8; E.g. Valesquez Rodriguez Case, Inter-Am. Ct. H.R. (July 29, 1988), 28 I.L.M. 291, 324, 166 (1989)(American Convention requires states "ensure" full exercise of protected rights including life.) McCann and Others v. U.K., 21 EHRR 97 (1996)(European Court of Human Rights holding that the right to life "extends to, but is not concerned exclusively with, intentional killing.") Thus, Plaintiffs need not demonstrate that Defendants’ acted with a mens rea of purpose to state a right to life claim. Roht-Arriaza Aff. 5.

This is particularly clear in the context of environmental harms. Roht-Arriaza Aff. 6; Supp. Van Dyke Aff. 9-13; see also Kiss/Shelton Aff. 28, 29. For example, the 171 states attending the World Conference on Human Rights recognized that illicit dumping of toxic waste may seriously threaten the right to life. The U.N. Human Rights Committee concluded that a petitioner alleging life-threatening dumping of nuclear waste stated a prima facie right to life case under the Covenant on Civil and Political Rights. The Inter-American Commission on Human Rights has twice found violations of the right where resource exploitation threatened life or caused deaths. Ecuador Report at 92; Yanomami Case, Case No. 7615 (Brazil), Res. 12/85, reprinted in 1985 Inter-Am. Y.B. on Human Rights 264. (March 5, 1985). Indeed, member states of the Council of Europe have even agreed to impose criminal sanctions on polluters who negligently cause death. Convention on the Protection of the Environment Through Criminal Law, Art. 3, 38 I.L.M. 259 (1999).

Where conduct prohibited by an international norm is also banned by U.S. law, our law contributes to the consensus that the conduct is universally proscribed. Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995). Under the Due Process Clause, where a state actor’s "extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking" and is thus actionable. County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998). U.S. law therefore contributes to the consensus that killing through extreme, protracted indifference to human life is arbitrary killing in violation of the right to life.

In cases under the ATCA, courts need only consider whether the specific conduct alleged is prohibited. Xuncax, 886 F. Supp. at 187; Forti, 694 F. Supp. at 709. Here, Plaintiffs have alleged that Defendants caused massive transboundary harm, with recklessness and deliberate indifference, that resulted in serious and widespread breaches of the rights to life and personal security of the Plaintiffs and members of the Class. Defendants’ conduct clearly violates customary international law. Roht-Arriaza Aff. 7, 8; Supp. Van Dyke Aff. 16, 18, 21, 23; Opp. Mem. at 29-30. Accordingly, Plaintiffs have stated an actionable ATCA claim.

The International Law Commission, a body authorized by the United Nations to codify customary international law, in its Second Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law (Prevention of Transboundary Damage from Hazardous Activities, A/CN.4/501, 5 May 1999), addressed the liabilities of private actors under customary international law for transboundary harms. The Report notes the view of the United States delegation, which concurred in the well-settled international consensus upholding the fundamental principle that "under customary international law, States are generally liable for significant transboundary harm caused by private entities acting on their territory or subject to their jurisdiction or control." Supp. Van Dyke Aff. 15. Transboundary harm consists of activities in one national jurisdiction that causes adverse impact in another. Supp. Van Dyke Aff. 15. It is well-settled, therefore, that transboundary harms of the nature alleged by Plaintiffs give rise to liability under customary international law.

Where, as here, the character of the transboundary harm also constitutes an international crime, liability may be imputed to private parties such as Defendants. In the Draft Articles On State Responsibility, the International Law Commission has expressly noted that conduct involving "a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being" is an international crime. ILC Draft Code of State Responsibility, Art. 19(3)(c); Supp. Van Dyke Aff. 14, 16. "Serious" breaches are those that are committed with the requisite degree of criminal culpability, i.e. deliberate, reckless or criminally negligent, conduct. The term "widespread" refers to the number of victims. Supp. Van Dyke Aff. 16. As the International Criminal Tribunal for the Former Yugoslavia has held that

it is well recognized" that "the principle of individual responsibility and punishment for crimes under international law recognized at Nuremberg is the cornerstone of international criminal law. This principle which is the enduring legacy of the Nuremberg Charter and Judgment which gives meaning to the prohibition of crimes under international law by ensuring that the individuals who commit such crimes incur responsibility and are liable to punishment.

Prosecutor v. Dusko Tadic, 36 I.L.M. 908, 948 (1997).

Thus, transboundary harm that is serious, and indeed criminal, in character and results in deprivations of the rights to life and personal security, essential to safeguarding the human person, on a widespread scale, there can be no doubt that such conduct constitutes an offense under customary international law actionable under the ATCA. Supp. Van Dyke Aff.

15, 17, 18, 21. However, this Court need not address the liability of purely private actors for violation of this customary norm, since Plaintiffs have adequately alleged that Defendants committed the offense as state actors in India, and, as state actors, their conduct unquestionably violates customary law. Supp. Van Dyke Aff. 21-23.

CONCLUSION

For all of the foregoing reasons, Defendant Warren Anderson’s motion to dismiss, deny class certification and/or for summary judgment should be denied in its entirety.

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