Court Cases: Union Carbide’s Environmental Liability

As explained in The Troubling Rumors of Toxic Waste, when Union Carbide fled India after the disaster, it left behind tons of chemical wastes, and these have poisoned the groundwater and the health of thousands of Bhopal residents.

Attempts to hold Union Carbide legally accountable for the Bhopal disaster is long and complex. Lawsuits were filed in the U.S. as early as 1985, but they were dismissed in favor of litigating the case in Indian courts (see Compensation and the Injustice of the 1989 Settlement).

Starting in 1999, three class action lawsuits have been filed on behalf of Bhopal residents suffering from Union Carbide’s careless planning, which had a direct hand in causing the disaster and in contaminating surrounding soil and water:

Bano v. Union Carbide – Filed in 1999 and referred to as “Bano”

Sahu v. Union Carbide – Refers to 2 separate lawsuit

  • The first was filed in 2004 and is referred to as “Sahu I”
  • The second was filed in 2007 and is referred to as “Sahu II”

This section provides an in-depth explanation of these three cases.

For a timeline of this section, see Timeline: US Court Cases.

Bano v. Carbide Filed in Court

On November 15, 1999 a civil class action lawsuit, “Bano v. Union Carbide Corp.,” or “Bano,” was filed in the Federal Southern District Court of New York (SDNY) on behalf of seven individual Bhopal survivors and five organizations representing survivors. The plaintiffs were originally represented by Rajan Sharma, of the New York law firm Sharma & Deyoung.

The case contained claims under fifteen different counts and was unrelated to the disaster itself. The Hon. John F. Keenan, United States District Judge, was assigned to the case. Keenan was the same judge who, in 1986, ruled that the original law suit against Union Carbide should not take place in an American court on the grounds of forum non-convenience.

Bano sought a comprehensive cleanup of the contaminated site and the properties around the factory, as well as compensation and medical monitoring for those poisoned by Carbide’s chemical waste.

The suit was filed on behalf of:

  1. All persons who suffered personal injuries as a result of exposure to the MIC gas.
  2. All persons who are entitled to recover damages for losses caused by death of their relatives.
  3. All persons who were exposed to MIC as set forth above but whose injuries have not yet manifested themselves.
  4. All persons not yet born whose injuries will manifest themselves as congenital birth defects resulting from exposure to MIC.
  5. All persons who continue to be exposed to toxic effluents, chemical by-products and other hazardous agents as a result of ongoing environmental pollution at Union Carbide’s facility in Bhopal.

The five organizations named in the case were: Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS), Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha (GPNPBSM), Bhopal Gas Peedit Mahila Stationery Karmachari Sangh (BGPMSKS), Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS), and Bhopal Group For Information and Action (BGIA).

The suit’s main allegations were that:

  1. Union Carbide demonstrated reckless or depraved indifference to human safety and life because of the design, operation and maintenance of its MIC facilities and safety mechanisms in Bhopal.
  2. UCC pursued a systematic policy of racial discrimination in the design, construction and operation of the Bhopal factory.
  3. Union Carbide demonstrated reckless or depraved indifference to human life in the manufacturing, storage, treatment and disposal practices at the UCIL plant, resulting in severe contamination of the soil and water in and around the UCIL plant.
  4. Union Carbide and Warren Anderson were and are fugitives from the lawful jurisdiction of the Bhopal District Court, where criminal charges remain pending against them. [Note: Anderson died in 2014]

The suit was based on the legal provisions under the US law Alien Torts Claims Act (ATCA) and cited supporting legislation such as the Declaration of the United Nations Conference on the Human Environment (also see Wikipedia entry). ATCA provides for civil remedies in a US court for “crimes against humanity” – atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against a civilian population – committed by a US agency. Bano sought the federal court’s decree directing UCC and Anderson to pay exemplary punitive damages in amounts to be proven in trial.

Fortunately, many of Union Carbide’s internal documents, which reveal the extent of Carbide’s negligence, culpability and naked greed in Bhopal, became public as a result of the discovery process of this lawsuit. These internal documents  provided proof that the  corporation and its executives had a direct role in the faulty planning of the factory and knowledge of the ongoing contamination. Much of the damning evidence against Carbide, which we reveal throughout the “What Happened In Bhopal?” section of www.bhopal.net, has come from these documents.

Polluter Pays

But what Carbide knew and when it knew it, while damning, is to a certain extent irrelevant. The “polluter pays principle” (PPP) is the law in India, and intent or knowledge of contamination is not a prerequisite for being held accountable. In Indian law, the Hazardous Waste (Management and Handling) Rule of 1989 594(E), Section 3 Sub section (1) and Section 4(1) stipulates that the producers of the contaminated waste are responsible for decontamination. PPP is also enshrined in the Environmental Protection Act, passed in India in 1986. Ruling in Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC.647, the Indian Supreme Court declared that, “…Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.” Elaborating on the PPP in MC Mehta v. Union of India (1997) 2 SCC 353, the Supreme Court ruled that the polluter pays principle as interpreted by the Court means that, “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also of restoring the environment degradation.”

Therefore, whether Union Carbide KNEW it was polluting doesn’t matter – the fact is that its methods of dumping chemicals DID lead to contamination and therefore it is the polluter – and in India, the polluter is required by law to pay.

International Opinion Weighs In

On October 17, 2003, nine members of the US Congress submitted an “amicus curiae” letter to the SDNY court in the matter of “Bano v. Union Carbide Corp.” The letter stated, “The ‘polluter pays’ principle has been affirmed by both international law and American common law as well as Congressional enactments as the appropriate means for addressing such pollution or environmental harm regardless of where it occurs. That principle cannot and should not be ignored or disregarded simply because the polluter has abandoned its facility, sold its shares in a subsidiary or otherwise effected a change of ownership.”

On September 29, 2004, US Congressman Frank Pallone introduced bill #503 to the US House of Representatives. The resolution called for Congress to express commitment to work with the Government of India and others to ensure that, amongst other things, Union Carbide provides environmental rehabilitation in Bhopal: “International trade and ethical practices compel Dow Chemical [the new owner of Union Carbide] to treat this matter very seriously and ensure that equitable treatment be afforded to the victims and their progeny.”

On November 29, 2004, Amnesty International released a report entitled, “Clouds of Injustice: Bhopal Disaster 20 Years On.” Drawing attention to the ongoing violation of human rights in Bhopal, the report (page 32) quotes Judge Weeramantry, sitting in the International Court of Justice in The Hague, who said: “The protection of the environment is… a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”

Amnesty noted that, “it is now a recurrent theme in environmental law that liability for environmental harm is channeled towards the private originator or polluter, sometimes on the basis of fault and in other cases on the basis of strict liability. Operators of hazardous facilities are held liable, in some cases by treaties imposing strict liability” (pages 35-6). Amnesty concludes by calling on the Dow Chemical Company to promptly provide full reparations, restitution, compensation and rehabilitation for the continuing damage done to people’s health and the environment by the ongoing contamination of the site.

The Results of Bano

On August 28, 2000, Judge Keenan summarily dismissed the case from trial court on several legal grounds, but without considering whether Union Carbide actually violated international law. The plaintiffs’ lawyers filed an appeal for reconsideration, with claims under seven counts regarding contamination of ground water and soil in and around the factory and consequent health damages.

In November 2001 the Second Circuit Court of Appeals reinstated parts of the original case to trial court. The Appeals court allowed all of the claims of pollution and contamination not directly related to the 1984 gas plant disaster to proceed in trial court. However, the Appeals court dismissed the claims relating to the 1984 disaster because it found that the 1989 settlement precluded any other legal claims and that that settlement was still valid, and so no further lawsuits on that matter could be brought. This ruling was made in spite of the fact that Union Carbide and Anderson have failed to show up in Indian court to answer the criminal charges against them, which stem from the 1989 settlement, and in reality they have fled the jurisdiction of the Indian courts. Also, the Appeals court did not rule on whether Union Carbide’s actions did, in fact, violate international law norms.

In November 2002 the survivors released documents obtained via the discovery process of Bano. Among other things, these documents showed that UCC imposed “unproven technology” in the critical MIC unit in order to cut costs and retain control of their Indian subsidiary, and that Union Carbide tested soil and water in and around its factory in Bhopal after the disaster and found them to be heavily contaminated. UCC had not made this information public but used another report (NEERI), which said there was no contamination, to appease the public and the government of India. The confidential documents showed that UCC considered the findings of the NEERI report to be unreliable but nevertheless still used them publicly to denial any wrongdoing.

On March 18, 2003, the trial court dismissed the Bhopal residents’ claims that Union Carbide caused massive water pollution of the local water supply. In dismissing the case, the Court did not address the question of whether Carbide caused the pollution. Instead, the Court dismissed because, in its view, the named plaintiff was injured too long ago to present a claim, the organizations that filed the suit could not represent the victims, and an order that Union Carbide clean up the plant would be difficult to enforce.

On March 17, 2004, the US Second Circuit Court of Appeals reversed Judge Keenan’s dismissal in part. It held that while the named plaintiff’s personal injury claims were time-barred, her property damage claims were not. The Court held that Union Carbide could be ordered to clean up individual victims’ property and could also be ordered to clean up the plant site itself, if the Indian authorities, owners of the land on which the plant sits, were to intervene and request such a clean-up. The appeal decision also allowed for certain personal injury claims within the statute of limitations period, property claims for monetary damages, and claims for medical monitoring by plaintiffs.

On June 28, 2004 both the M.P. government and the Government of India submitted a “no objection” letter to the SDNY court in the matter of “Bano v. Union Carbide Corp.” and stressed the Polluter Pays Principle: In June Government of India wrote to the SDNY that: “Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean-up and remediation. The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.” It was not easy to get the Indian government to send this certificate: it was issued only after six days of waterless fast by two survivors and one Bhopal campaigner.

In 2005, the district court dismissed the property claim of the named plaintiff, Haseena Bi, concluding that she did not own her property. In August 2006, the Second Circuit Court of Appeals affirmed in a summary order.

Sahu I Filed in Court

In 2004 another group of survivors filed a related class action lawsuit, “Sahu v. Union Carbide Corp.” (referred to as “Sahu I”), also in the Federal Southern District Court of New York (SDNY). In addition to EarthRights International and Sharma & Deyoung LLP, the plaintiffs were also represented by the Law Offices of Curtis V. Trinko and Cohen Milstein Sellers & Toll PLLC.

Sahu I asserted personal injury claims. The plaintiffs sought the following as a result of Union Carbide’s indiscriminate dumping of toxic waste:

  1. Damages for personal injury
  2. Medical monitoring
  3. A court order obliging Dow Chemical/Union Carbide to clean up the site and to provide drinking water supplies for affected residential areas

From the previous Bano case, US courts had already accepted that the matter of contamination was a distinct problem separate from the 1984 gas disaster. And like with the Bano case, Sahu I was dismissed and reinstated multiple times.

In November 2006, the SDNY trial court granted summary judgment to the defendants (Union Carbide), finding them not liable for damages alleged.

The plaintiffs appealed this judgment, and in 2008 the Second Circuit Court of Appeals, however, vacated the judgment of the trial court on grounds that it did not provide the plaintiffs notice that it intended to rule based upon the limited evidence that was before the court, meaning the court did not give Sahu sufficient notice to create an adequate response to UCC’s motion to dismiss before the court arrived at summary judgment. The Second Circuit sent the case back down to the District Court for further proceedings.

Judge Keenan refused to accept many of the plaintiff’s discovery documents, and he summarily dismissed Sahu I in full (and controversially) on June 26, 2012.

In his original dismissal, Keenan argued that the Union Carbide Corporation is not the correct entity to bring litigation against and that there is a distinct separation between Union Carbide India Ltd (UCIL), which was the operator of the Bhopal plant, and the Union Carbide Corporation (UCC). But, the survivors’ evidence disavows that notion, if the courts would have allowed it all to be submitted. Read more about the relationship between UCC and UCIL here.

The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit once again, which heard oral arguments on June 17, 2013. The plaintiffs’ counsel again presented the evidence to the court that proved UCC was intimately involved: the pollution came from technology provided by UCC, UCC provided that technology even though it knew the process would threaten plaintiffs’ water supply, and UCC came up with the waste disposal plan that ultimately contaminated plaintiffs’ drinking water and that of thousands of their neighbors. This is enough under the law to hold UCC liable for its own acts.

But on June 27, 2013, the Second Circuit Court of Appeals, in very controversial circumstances, affirmed the District Court order granting summary judgment to the Union Carbide Corporation.

The Second Circuit’s judgment was described as a “non-precedential summary order,” meaning it cannot carry authority as precedent in any future cases. But non-precedential orders do not require an Appeal court to set out the reasoning behind their decision-making in detail and, as result, the court’s decision does not substantively address the volume of evidence presented by Sahu et al. The Court of Appeal’s non-precedential summary order does not explain WHY the documented evidence has been ignored and therefore the judgment is no more than a political whitewash.

Sahu I specifically challenged the Court’s refusal to permit certain depositions including that of Warren Anderson. Anderson was clearly a key player, as CEO of Union Carbide at the time leading up to the 1984 disaster, and remained a declared fugitive from India’s courts, charged with culpable homicide and other serious criminal offences, yet the District Court denied Sahu’s requests for these depositions finding them, bizarrely, to be “unduly burdensome.” [Warren Anderson has since died, in September 2014.]

The Appeals Court agreed with Keenan, favorably quoting the District Court’s assertion that no witnesses could be expected to give accurate and detailed accounts of events that occurred 15-35 years earlier. This perspective rewards the defendants in cases of significant judicial delay and punishes the plaintiffs.

The court also seemed to accuse Sahu I of being too thorough by criticizing the plaintiff’s discovery process as a voyage worthy of “Vasco Da Gama.”

Reactions to Sahu I’s Dismissal

In reaction to this decision, Louise Christian, an award-winning British human rights lawyer, stated: “This decision to deny justice to poor and vulnerable people caused irreparable harm by big business should shame the world. The US appeals court has ignored compelling evidence about the central role played by the Union Carbide Corporation based in the US in equipping, overseeing and enabling the Indian offshoot of the company to produce UCC’s own product.” She also added that, “Those who run multinational corporations should not be allowed to escape liability for grievous harm by creating complex corporate structures and hiding behind these. The paltry compensation paid in India to the victims and the failure to prosecute anyone over Bhopal is a disgrace. The history should be reviewed by the United Nations with a view to introducing international law mechanisms for securing justice in this and other cases.”

Rachna Dhingra of the Bhopal Group for Information and Action alleged that the judges turned a blind eye to the facts on record simply in order to avoid making American corporations accountable for crimes committed outside the U.S.

Nawab Khan, president of the Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, said lawyers representing the plaintiffs were “exploring all options” to continue the legal fight. “It took survivors of the Nazi holocaust 50 years to obtain redress through the courts,” Khan said. “Like them, we will not give up until we receive complete justice for the wrongs done to our families.”

Balkrishna Namdeo, president of the Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha, said the US judges’ clarification that the decision to absolve the parent corporation should not be cited as a precedent for other cases, “is the best illustration of how unsure the judges themselves are about the legal validity of their decision.”

Summary of the Importance of Bano and Sahu I

The Bano and Sahu I court cases, while both eventually summarily dismissed, did score some major boons for the plaintiffs:

  • The US courts accepted that the contamination in Bhopal is a distinct matter from the 1984 gas disaster and that the issue of contamination has not been part of any pre-existing settlement. Therefore the court has allowed for the POSSIBILITY of compensation for the people living in the contaminated areas – *if* a court will ever allow a case to move forward.
  • UCC has continually argued that only an Indian court can order a clean up in Bhopal. (And at the same time both UCC and Dow have pleaded – in the Madhya Pradesh court – that Indian courts have no jurisdiction over them.)  The Second Circuit Court of Appeals struck down this notion, stating that as long as it was acceptable to the Indian government, an American court could force UCC/Dow to clean up the factory site. The Indian government then sent a letter signalling this was acceptable. So in the future, an American court could force UCC/Dow to clean up Bhopal.
  • During the discovery process of the cases, hundreds of UCC internal documents were unearthed. These documents contain vital evidence, which substantiated many of the Bhopalis’ claims about UCC’s direct control of the factory design and waste management plans. This evidence makes up the back bone of the plaintiffs’ case moving forward and these revelations can be found throughout the “What Happened in Bhopal?” section of this website. Without these documents, many of the survivors’ claims would not have been fully proven – whereas now we have all the facts.

Sahu II Filed in Court

The Sahu II lawsuit is No. 07 Civ 2156 in the Southern District of New York. In addition to EarthRights International and Sharma & Deyoung LLP, the plaintiffs have also been represented by the Law Offices of Curtis V. Trinko and Cohen Milstein Sellers & Toll PLLC.

While Sahu I was on appeal in 2007, Sahu II was filed with the SDNY court, asserting property damage claims (whereas Sahu I was for personal injury claims). The named plaintiffs in Sahu II are not identical to those in Sahu I, but because the facts at issue in the cases are similar the District Court granted the plaintiffs’ motion to stay, or suspend, Sahu II while Sahu I proceeded through the courts.

In June 2013, after the Second Circuit’s summary dismissal of Sahu I, the SDNY court dissolved the stay in Sahu II, and that case reopened. UCC then moved for summary judgment, arguing that Sahu II should be dismissed on the same grounds as Sahu I.

The Sahu II plaintiffs opposed that motion, and in late January 2014 they presented new evidence of UCC’s responsibility that was not before the Court in Sahu I.

The new evidence consisted of statements from former Union Carbide and Union Carbide India employees, as well as evaluations by experts in waste disposal systems. These statements established that UCC provided critical design elements for the plant and its waste management system – and that this design caused the ongoing toxic waste problem in Bhopal. Plaintiffs’ evidence also showed that it was a Union Carbide employee that oversaw and approved the construction and design of Union Carbide’s plan for the Bhopal plant.

Specifically, plaintiffs presented:

  • The declarations of two eminent waste disposal experts, who showed that UCC’s manufacturing design and “high risk” waste management strategy caused the pollution.
  • The declaration of L.J. Couvaras, who was the Project Manager for the construction of the plant, as well as that of a UCIL employee. Both declarations demonstrate that Couvaras was a UCC employee when he oversaw and approved all design and construction done in India. This shows that UCC had final authority over all design, including of the waste disposal system, in Bhopal.

“This evidence demonstrates that Union Carbide was intimately involved in every aspect of designing and building the Bhopal plant, including the waste disposal systems,” said Rick Herz, counsel for the plaintiffs and Litigation Coordinator for EarthRights International.

In July 2014, SDNY Court granted summary judgment for the defendants of Sahu II, finding that UCC could not be sued for ongoing contamination from the Bhopal plant – despite evidence submitted by plaintiffs showing UCC had a direct hand in the construction process. In his decision, Judge Keenan improperly dismissed Couvaras’s declaration – which Keenan described as unsupported – despite the fact that judges are not supposed to weigh the persuasiveness of evidence at the summary judgment stage.

Marco Simons, the Legal Director of EarthRights International in 2014 and who is assisting the Bhopal plaintiffs in this case, stated in response to the court’s judgment and UCC’s claims that it is not responsible: “Seemingly undeniable evidence demonstrates otherwise: John Couvaras, the project manager who directly oversaw the construction of the Bhopal plant, testified that he worked for Union Carbide at the time. A manager from Union Carbide’s Indian subsidiary confirmed this assertion…Astonishingly, the court simply didn’t care. Couvaras’s own testimony about the company he worked for is ‘unsubstantiated,’ [Judge] Keenan decided. Instead, Union Carbide’s statements that Couvaras worked for its subsidiary [UCIL] were ‘conclusive’ evidence. If you ever thought you knew your own employer’s identity, think again — your testimony on that subject isn’t even really evidence.”

In other words, Marco stated, “The court’s decision discounted this evidence, and it depends entirely on assuming that the manager who oversaw the construction of the Bhopal plant – who said he worked for Union Carbide – didn’t really know who he worked for.”

In August 2014, the plaintiffs filed an appeal with the Second Circuit Court and were confident that the compelling evidence would lead to a reversal of the decision. Because judges are not supposed to ignore or weigh evidence without letting a jury hear the case, the plaintiffs believe that the Second Circuit will correct this error. The plaintiffs also urgently requested the right to a deposition of Couvaras in order to explore his testimony further.

In addition, the plaintiffs have also sued the Indian state of Madhya Pradesh, which now owns the Bhopal site, to compel its cooperation in the cleanup of the contamination.  As of 2014, neither the Government of India nor the State of Madhya Pradesh appeared before the court. Read more about that case in XXXXXX.

Caught in a Catch-22 & the Need for International Justice

With regards to these cases, co-counsel for the plaintiff Rajan Sharma, of the New York law firm Sharma & Deyoung, has stated, “These families have been living with Union Carbide pollution for decades and they deserve justice. Union Carbide refuses to submit to the jurisdiction of India’s courts and asserts that American courts may not grant relief without the participation of the Indian government.”

Marco Simons added, “After the Bhopal debacle, Union Carbide packed up and left a mess that’s still poisoning residents and their environment, and its mess is now Dow’s problem [Dow Chemical bought Union Carbide in 2001]. People living near the plant continue to suffer physical ailments, live on contaminated property, and drink poisoned water. Not only have the victims been denied justice at every door they’ve knocked on, they have also been sued for seeking justice in the first place.” Note: Simons is referencing that fact that Dow has tried to sue Bhopal activists four different times in Indian courts over their continued protests against the company.

As this detailed history shows, Union Carbide has done everything it can to avoid responsibility, claiming that the Indian courts have no jurisdiction over it and the American courts have no business in this matter. Unfortunately so far the American courts have agreed, leaving the survivors with no recourse and generations of suffering. The survivors are in what seems to be a Catch-22: court cases that take decades, never-ending dismissals and appeals, everyone passing the buck, and every time it lands in the laps of the victims. International legal justice is needed for Bhopal – so that the survivors can live a life of justice and dignity, and because such a legal victory would set a legal precedent that will ensure no one else will have to suffer in the ways the Bhopalis have.

Portions of this page are from sources written by Rajan Sharma and EarthRights International.

For a list of legal documents related to this case, see these pages on EarthRights International’s websit:

http://www.earthrights.org/legal/sahu-v-union-carbide

http://www.earthrights.org/media/new-evidence-shows-union-carbides-role-designing-and-building-indian-chemical-plant-killed

http://www.earthrights.org/media/new-evidence-shows-union-carbides-role-designing-and-building-indian-chemical-plant-killed

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