Court Cases Outstanding – Briefing Paper

Raghu-Arial-484x316

Raghu-Arial

The Dow Chemical Company’s Bhopal Related Legal Liabilities

The Dow Chemical Company (Dow) claims that all legal matters concerning the Bhopal disaster are closed. This is simply not true. Dow has summons to appear in a number of ongoing cases arising from Union Carbide’s business in Bhopal:

1.      Dow is a named respondent in a forthcoming ‘curative petition’ in India’s Supreme Court that aims to address inadequacies within the 1989 civil settlement (U.S. $470 million) and a hearing date is due after postponement of the originally scheduled date of August 5th, 2014.

The Indian Government’s official position is that the ‘gross inadequacy’ of the 1989 settlement with UCC resulted in an ‘irremediable injustice’ and is seeking  additional compensation of up to $1.24billion, based on higher figures for the dead and injured. But, the Bhopal survivors groups are quoting the Government of India’s own previously published numbers (Indian Council of Medical Research, epidemiological report, 2004) which are considerably higher and would raise the required settlement to $8.1billion. The other respondents are Union Carbide Corporation, Union Carbide India Limited and Eveready Industries.

 

2.      Dow’s wholly owned subsidiary Union Carbide Corporation (UCC) is wanted on CRIMINAL charges of ‘culpable homicide not amounting to murder’ and is a ‘proclaimed absconder’ from Indian justice. Dow has total control of UCC but has not produced UCC in court. Instead, Dow used another wholly owned subsidiary to block a 2005 judicial summons, addressed to its Michigan HQ, requesting it explain the non-appearance of UCC in the courts. The Bhopal Chief Judicial Magistrate removed the blocking order, in 2012, and a summons has now been issued to Dow requiring it attend court on November 12, 2014. Dow will be required to explain why UCC has repeatedly ignored court summons in the ongoing criminal case.

Audrey Gaughran, Amnesty International’s Director for Global Issues, recently said: “The time has come for Dow to appear in an Indian court and account for the failure of its wholly-owned subsidiary, Union Carbide, to respond to the criminal charges against it.”

 

3.      Dow is a named respondent in a public interest litigation in the Madhya Pradesh High Court (2004) seeking remediation of the abandoned Union Carbide factory site. But Dow continues to resist the Ministry’s 2006 request for a £16 million deposit towards initial costs.

Dow refuses to acknowledge the official position of the Indian government, as expressed in a letter to the Lower District Court, Manhattan, dated June 8, 2004, viz: “It is the official position of the Government of India that the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no legal bearing on or relation whatsoever to the environmental contamination… Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all 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.”

 

4.      Union Carbide Corporation is subject to a federal class-action lawsuit Sahu I, filed in 2004, asserted personal injury claims but, in November 2006, the court granted summary judgment to the defendants, finding them not liable. Sahu II (v. UCC) in the Southern District New York Court asserts property damage claims caused by the indiscriminate dumping of toxic waste in and around the Union Carbide factory.

The US courts accept that contamination caused by the dumped waste is a separate matter from the 1984 gas disaster and has not been part of any pre-existing settlement. However, UCC has argued in New York that only an Indian court can order a clean-up in Bhopal but both UCC and Dow Chemical have pleaded (in the Madhya Pradesh court) that Indian courts have no jurisdiction over them.

On 31st july 2014, Judge Keenan ruled in favour of UCC finding that the company could not be sued for ongoing contamination from the chemical plant. Union Carbide’s defence is based on their claim to have not been involved in the design, or construction, of the plant but the plaintiffs, represented by EarthRights International, Sharma & Deyoung LLP, and the Law Offices of Curtis V. Trinko, argued that they had presented evidence that a UCC employee, Lucas John Couvaras, managed the construction of the plant.

EarthRights et al believe that an appeal may well be successful but they must hope that Judge Keenan recuses himself from the case as he previously sat on Sahu I and never found in favour of the plaintiffs.

mourn-484x363Marco Simons , Legal Director of EarthRights International, assisting the Bhopal plaintiffs in the case said: “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,” Keenan decided. Instead, Union Carbide’s statements that Couvaras worked for its subsidiary 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.”

“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. 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: Dow has tried to sue Bhopal activists four different times in Indian courts over their continued protests against the company).

 

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We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.