The Dow Chemical Company’s Bhopal Related Legal Liabilities

picture 36. Rubeda Banu, and her three sons, Bhopal 2002  Rubeda Banu's three sons have stunted growth. Shakeel, who was a week old when the tragedy occurred, Raes Ahmed who was 18 months and Muzaffar who was born a year later, are all less than five feet tall. Her mother has severe problems related to breathing and mental depression. "In all, 13 members of our extended family have been victimised by this tragedy," says Rubeda Banu.     (Annual Report 2002 page 14)

Photo courtesy: (c) Greenpeace/ Raghu Rai

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 is summoned 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 scheduled date, 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’. It is seeking additional compensation based on higher figures for the dead and injured. The Bhopal survivors groups have challenged the Government to use its own, previously published, figures (Indian Council of Medical Research, epidemiological report, 2004) for the dead and injured which would require a settlement of $8.1billion. The other respondents are Union Carbide Corporation, Union Carbide India Limited and Eveready Industries.

Union Carbide moved for early hearing of Curative Petition CLICK HERE

  1. 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 never produced UCC in court.

After the 2001 takeover of UCC, 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 court removed the blocking order, in 2012, and a summons was issued to Dow requiring it attend on November 12 2014 and explain why UCC has repeatedly ignored court summons. Dow did not attend the court and was then summonsed to appear on March 13, 2015 and, again, on 19th December, 2015 but did not attend. More information

Audrey Gaughran, Amnesty International’s Director for Global Issues, 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.”

  1. Dow is a named respondent in 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.”

  1. Union Carbide Corporation is subject to a federal class-action lawsuit (Sahu II v. UCC) in the Southern District New York Court. Sahu II asserts property damage claims caused by the indiscriminate dumping of toxic waste in and around the Union Carbide factory.

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

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. On July 31, 2014, a New York federal court hearing Sahu II, found that Union Carbide Corporation (UCC) could not be sued for ongoing contamination emanating from the Bhopal plant despite new evidence demonstrating that construction of the plant was managed by a UCC employee. The plaintiffs are confident this evidence will lead to a reversal of the decision on appeal.

Marco Simons , Legal Director of EarthRights International, assisting the Bhopal plaintiffs in the case said:

“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 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).

Spread the word. Share this post!

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.