Survivors of the Bhopal gas tragedy and some non-government organisations (NGOs) have decided to appeal in the second circuit court of appeals against the US court summary judgment which ruled that neither Union Carbide nor its former chairman, Warren Anderson, were liable for environmental remediation emanating from one of the world's worst industrial accidents.
Interestingly, the state government, which had earlier promised to be an intervener in the case has done nothing so far, claims activists.
Even after the recent judgement, the state government, reportedly, has made no announcement on whether it would be on the side of the victims who are fighting for justice.
US District Judge John Keenan in Manhattan dismissed a lawsuit accusing the company of causing soil and water pollution around the Bhopal plant due to the disaster, and ruled that Union Carbide and Anderson were not liable for remediation or pollution-related claims. Chief Minister Shivraj Singh Chouhan had committed in the state Assembly on 26 July 2010 that his government would urge the Centre to intervene in the case, and if the Centre does not agree, his government would go on its own, along with the plaintiff of the case. Yet nothing has happened, laments the activist.
“The government will have to examine the recent decision and then will decide about it,” a senior official told Business Standard.
“The court had, on several occasions, ruled it was Union Carbide India Ltd, and not its parent company UCC that was responsible for the generation and disposal of the waste that polluted drinking water through a solar evaporation pond. The main plaintiff Janki Bai Sahu and sixteen others had filed a case that toxic substances seeped into a ground aquifer, polluting the soil and drinking water supply in residential communities surrounding the plant site. We will appeal in Second Circuit Court of Appeals. Actually we face problem since State government and Central government are not a party in the case,” said an activist involved with the case.
Chief Minister Shivraj Singh Chouhan had committed in the state Assembly on 26 July 2010 that his government would urge the Centre to intervene in the case, and if the Centre does not agree, his government would go on its own, along with the plaintiff of the case. Yet nothing has happened, laments the activist.
All the plaintiff had urged the court that exposure to soil and drinking water polluted by hazardous waste produced Union Carbine India Ltd caused injuries.
All litigation attempts to hold Union Carbide legally accountable for this disaster has become complex, though lawsuits were filed in the US as early as 1984, but in 1986 they were dismissed in favor of litigating the case in Indian courts.
In August 2000, a Sajida Bano or “Bano” case suffered a setback when the US trial court dismissed the lawsuit. The plaintiffs had a mild victory in November 2001 when the Second Circuit Court of Appeals reinstated parts of the case.
The appeals court allowed all the claims of pollution and contamination not directly related to the 1984 gas disaster to proceed. It sent them back to the trial court. However, the court dismissed the claims pertaining to the 1984 disaster because as found 1989 settlement precluded any other legal claims, despite criminal charges standing against Union Carbide and Anderson.
Again on March 18, 2003, the trial court dismissed the Bhopal residents' claims that Union Carbide caused massive water pollution of the local water supply. While dismissing the case, the Court said in its view the named plaintiff was injured too long ago to present a claim, the organisations that filed suit were not proper representatives of the victims, and an order that Union Carbide clean up the plant would be difficult to enforce.
On March 17, 2004, the Second Circuit held that while the named plaintiff’s personal injury claims were time-barred, her property damage claims were not. In addition, 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 government, which owns the land on which the plant sits, were to intervene and request such a clean-up.
On 28 June 2004, Central government issued a ‘no objection’ letter to the New York court, affirming the responsibility of Union Carbide with reference to the ‘polluter pays’ principle. Subsequently, the district court dismissed the property claim of the named plaintiff, Haseena Bi, concluding that she did not own her property.
On November 8, 2004, a related lawsuit Janki Sahu Versus Union Carbide was filed on behalf of seventeen plaintiffs injured by Union Carbide's water pollution at Bhopal. The suit sought injunctive relief involving on and off-site plant remediation and medical monitoring based upon four theories; Union Carbide was a direct participant and joint tortfeasor in the activities, Union Carbide worked in concert with UCIL to cause, exacerbate, and conceal the pollution problem, UCIL acted as Union Carbide's agent and UCIL acted as Union Carbide's alter-ego, justifying the piercing of UCIL's corporate veil.
On 1 December 2005, Justice Keenan dismissed the claims for the third time, converting defendants motion for dismissal into a summary judgment. The judgment cited the logistical impracticality of ordering injunctive relief in India, despite this having been addressed by the Appeals Court and India’s submission in Bano in 2004. Judge Keenan also made findings that the entire case could be dismissed on grounds of forum non conveniens – though defendants had not pleaded on these grounds - and rejected all theories of liability asserted in the complaint apart from piercing the corporate veil. Consequently, the court reserved its decision on the corporate veil-piercing claim and granted plaintiffs additional discovery.
On 22 December 22, 2005, plaintiffs filed notice to appeal the partial summary judgment. The arguments began being heard by the Second Circuit court on 15 November 2006.
On November 3, 2008, the US Court of Appeals for the Second Circuit reversed Judge Keenan’s dismissals, holding that the trial court erred in improperly considering the facts without converting to summary judgment on notice to plaintiffs. The appellate decision also vacated a separate decision of the trial court granting summary judgment on UCC’s parent-subsidiary liability because it relied on the same factual determination that was improperly made without notice to plaintiffs.