Friday, March 2, 2007

U.S. Court of Appeals in Bhopal gas disaster

BHOPAL GAS TRAGEDY

A historic ruling

V. VENKATESAN

A U.S. Court of Appeals sustains the plea of the survivors of the Bhopal gas disaster and orders Union Carbide Corporation to undertake the removal of contamination in and around the abandoned pesticide plant.

A.M. FARUQUI

In Bhopal, members of the `Bhopal Gas Peedit Mahila Udhyog Sangathan' protest on January 10 against the lack of medical facilities for the victims, the distribution of polluted drinking water in the affected areas, and the non-rehabilitation of the widows of gas victims.

AFTER nearly 20 years of struggle for justice and due compensation, the survivors of the 1984 Bhopal gas tragedy, the world's worst environmental and industrial disaster, won a major legal victory against Union Carbide Corporation (UCC), the perpetrator of the disaster and the then owner of the pesticide plant in Bhopal, in the U.S. Court of Appeals for the Second Circuit, New York.

Setting a significant precedent in the history of environmental litigation, on March 17, the court approved "injunctive environmental remediation" against UCC to clean up the pollution it caused in Bhopal. The judgment was delivered by Circuit Judges Wilfred Feinberg, Amalya L. Kearse and Reena Raggi.

The term "injunctive environmental remediation" encompasses any work that has to be done to remove contamination or pollution from a given site in order to restore it to certain applicable environmental standards. In this case, for example, remediation might entail a complete decontamination of the soil, the filtration and removal of contaminants in the groundwater to safe drinking levels, the removal of all the waste matter on the site such as asbestos wall cladding through the "treatment" or processing of such waste and/or transporting it to a location outside India.

Haseena Bi, one of the survivors of the tragedy, and several organisations in Bhopal representing survivors were plaintiffs in a class action suit against UCC filed before the U.S. District Court for the Southern District of New York seeking damages and injunctive relief for the severe pollution of their land and drinking water. A class action suit enables individuals and organisations to make a complaint both individually and on behalf of all other classes of persons similarly situated. The plaintiffs alleged that thousands of residents in and around the abandoned pesticide plant in Bhopal were exposed to toxins because of the contamination of soil and water. They accused UCC of causing pollution by utilising improper technology in the design of the Union Carbide India Limited (UCIL) facility in Bhopal and then recklessly dumping large quantities of toxic materials at the plant site. They claimed that pollutants from the plant continued to seep into the local environment causing serious health problems for nearby residents. "If nothing is done to resolve this problem in terms of the relief sought, UCC will have bequeathed another large-scale environmental catastrophe to Bhopal," the plaintiffs warned.

In March 2003, the District Court rejected the suit on the grounds that Haseena Bi's claims were time-barred, that organisations could not be representatives of individual plaintiffs, and that it would be impossible for a U.S. court to implement a decision that required a U.S. corporation to clean up contaminated land. The plaintiffs then filed an appeal before the Second Circuit Court of Appeal on the basis of internal documents of UCC and points of law.

It is important to understand the Appeals Court's decision in terms of the overall nature of the claims made in the class action suit. Plaintiffs had claimed the following as relief: (1) Damages for personal injury caused by exposure to contaminants in drinking water and soil through the underground aquifer from the UCIL factory; (2) monetary damages for loss of value of property and private hand pumps; (3) claims for medical monitoring of an estimated 20,000 people living in the 10 municipal wards around the former Carbide plant where contamination has been found; (4) environmental clean-up and remediation of off-site contamination on private properties/residences/hand pumps of plaintiffs; and (5) environmental clean-up and remediation of the former UCIL factory itself.

The Appeals Court has reinstated virtually all the claims. The court maintained that the plaintiffs' personal injury claims must be allowed to go forward but stated that the statute of limitations for such claims must be limited to three years before the filing of the complaint in November 1999. Of course, the three-year limitation period eliminates the claims of Haseena Bi who had stated that the injuries and symptoms resulting from contamination approximately dated back to 1990. But the case is "class action" litigation and Haseena Bi's personal injury claims are not the only ones to be included. Other plaintiffs can advance their personal injury claims, subject to the three-year time period. The District Court had not addressed the issue.

RAJ PATIDAR/REUTERS

A torchlight procession in Bhopal in December 2002 on the anniversary of the gas disaster.

The Appeals Court reversed the District Court's conclusion that monetary relief for property damage and loss of value of property and private hand pumps must be dismissed on the basis of the three-year limitation. The court affirmed the argument of the plaintiffs that because such claims are "continuous" and "ongoing" in nature the defence of a three-year limitation is not applicable. The Appeals Court also held that notice of personal injury damage did not amount to a constructive notice of property damage. This means that Haseena Bi and the approximately 20,000 residents of the 10 municipal wards in Bhopal that have been affected are free to prosecute such claims against UCC.

The Appeals Court declined to address the District Court's dismissal of the medical monitoring claims on technical grounds. Essentially, this means that the medical monitoring claims on behalf of the 20,000 or so plaintiffs continue to remain viable for individuals and the class.

The Appeals Court reversed the District Court's dismissal of claims for "injunctive relief" regarding property, that is, the clean-up of individual properties and hand pumps off-site.

The Appeals Court did, however, affirm the District Court's dismissal of the plaintiffs' claims that UCC should be made to pay for and undertake proper environmental clean-up and remediation of the former UCIL plant site. The court did so with an important caveat: it rejected the District Court's conclusion that such clean-up or equitable relief would be either "impossible" or would automatically "interfere" with India's interest in handling its own environmental problem. The term "equitable relief" is used to suggest that the court orders the defendant to do something, in terms of an activity, as opposed to merely paying damages for the harm it caused.

According to the plaintiffs' counsel, H. Rajan Sharma (see interview), the decision seems to suggest that such equitable relief for clean-up and remediation of the source of pollution, that is, the plant where thousands of tonnes of waste were improperly stored and disposed of, would be feasible and appropriate if either the Indian government or the Madhya Pradesh government were to make a submission indicating "receptivity" to an order from a U.S. court directing UCC to pay for and undertake such a clean-up. Furthermore, the Appeals Court expressly instructed the District Court to wait for and hold open the possibility of granting injunctive relief "until the entry of final judgment" in the case.

INDEED, there is no parallel to the December 1984 Bhopal gas tragedy in terms of the magnitude of destruction and the number of deaths. But the process of rendering justice to the victims has proved to be a deplorable legal tragedy. While the criminal case against those responsible for the disaster has been proceeding in the Bhopal District Court at a snail's pace, the civil case seeking due compensation appears to have been closed after the Indian Government and UCC arrived at a settlement before the Supreme Court in 1989. Under the settlement, UCC and its Indian subsidiary, UCIL, agreed to pay, and paid, $470 million to the Government of India on behalf of all the victims. Since then, the survivors of the tragedy have been questioning the unjust nature of the settlement and improper consideration of the compensation claims of individual victims and survivors. Besides, they have been deploring the extent of indifference within India and outside to the magnitude of the tragedy, and its continuing consequences for the health of the survivors and their families.

It was in this context that the organisations of the survivors and the relatives of those killed took their legal battle to the U.S. in November 1999. It coincided with the publication of the report by the Greenpeace Research Laboratories, Department of Biological Sciences, University of Exeter, based on its independent testing of the soil and water in Bhopal. The report found substantial to severe contamination of land and drinking water supplies with heavy metals and persistent organic contaminants both within and around the former UCIL plant.

In their class action suit, the survivors sought monetary and equitable relief under various common law theories for environmental harm allegedly attributable to the UCIL plant, but not related to the gas leak. The District Court had dismissed these claims, along with others. The Appeals Court returned the case to the District Court in November 2001 in order to permit the latter to consider the claims afresh, as in its view the judge had erred in dismissing them (Frontline, January 4, 2002). The dismissal of the claims by the District Court again in March 2003 on other grounds forced the plaintiffs to approach the Appeals Court again.

IF the plaintiffs' legal battle is to succeed finally, they need the cooperation of both the Union and Madhya Pradesh governments. The decision itself presents the invitation to submit a communication in express, specific language: "Madhya Pradesh has neither been made a party to this lawsuit nor sought to intervene, and the record contains no communication from Madhya Pradesh or the Indian government indicating its receptivity to an order of a United States court compelling work on the property... we believe the District Court should be free to revisit its dismissal of the claim for plant-site remediation in the event that the Indian government or the State of Madhya Pradesh seeks to intervene in the action or otherwise urges the court to order such relief."

In other words, if the District Court is to order UCC and its inheritors, Dow Chemicals, to undo the contamination in Bhopal, the two governments must first show their willingness to facilitate the execution of the order. It is up to the two governments now to seize the opportunity and help the plaintiffs-survivors obtain justice, even if it is belated.

Vol:21 Iss:09
URL: http://www.flonnet.com/fl2109/stories/20040507001708600.htm


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