Sahu has filed case on behalf of herself, her family, as guardian of her minor children. Sahu, the court said, appears to focus on public nuisance, and emphasizes that "everyone who creates a nuisance or participates in the creation or maintenance of a nuisance are liable jointly and severally for the wrong and injury done thereby." The court, however, referred to New York's First Department that has cautioned that courts are not to lay aside traditional notions of remoteness, proximate cause, and duty when evaluating public nuisance claims.
Sahu and her fellow plaintiffs, whose claims were not barred by the statute of limitations, filed a case in the Southern District of New York in November of 2004. Sahu contends that UCC may be held directly liable for the nuisance created by the leakage of the hazardous waste because UCC approved the plan to back-integrate the plant; transferred certain waste-producing technology to Union Carbide India Limited (UCIL); participated in designing the plant's waste disposal system; and participated in the inadequate clean-up of the site once the plant was shut down.
The circuit judges Guido Calabresi, Jose A Cabranes and Barrington D Parker in their order (a copy of summary of the order is available with Business Standard) said, "We conclude, substantially for the reasons set out at length in the District Court's clear and thorough opinion and order (June 26, 2012), that under either public or private nuisance no reasonable juror could find that UCC participated in the creation of the contaminated drinking water. Neither, UCC's approval of the plan to "back-integrate" the plant, nor its transfer of technology for pesticide manufacture, nor its designs for a waste disposal system, nor its limited involvement in remediation amount to participation in the failure of the evaporation ponds to contain the hazardous waste."
The judges further ordered, "We note in particular that it is clear from the undisputed facts that UCIL, and not UCC, designed and built the actual waste disposal system and Sahu points to nothing in the record (or even in the complaint) that suggests that the mere idea to use evaporation ponds as a means to dispose of waste water was a cause of the hazardous conditions. (Alleging that UCC was aware that toxic waste was leaching into the soil and groundwater). In short, no reasonable juror could find that the actions taken by UCC legally caused or otherwise indicated UCC's participation in the creation of the nuisance." The case in the U.S. Federal court concerns the pollution of soil and ground water by hazardous waste generated in the factory that was the site of the world's worst industrial disaster when toxic gases leaked from it in December 1984.