Judge Keenan, in the New York Southern District Court has ruled in favour of the defendant, the Union Carbide Corporation (UCC), finding that the company could not be sued for ongoing contamination from the chemical plant. The action seeks relief and medical monitoring for the contamination in Bhopal caused by the indiscriminate dumping of toxic waste in and around the Union Carbide factory while it was in production i.e. before the 1984 Gas Disaster. The US courts accept that this is a distinct matter from the Gas Disaster, and has not been part of any pre-existing settlement, but the problem has been in holding anybody to account for it.
In the Sahu II case the plaintiffs, represented by EarthRights International, Sharma & Deyoung LLP, and the Law Offices of Curtis V. Trinko, argued that they had presented the U.S. District Court of the Southern District of New York with evidence that a UCC employee, Lucas John Couvaras, managed the construction of the plant. Union Carbide’s defence is based on the fact that they claim to have not been involved in the design, or construction, of the plant but the Earth Rights evidence seems to disavow that notion.
Statement from the five organizations working for the rights of the survivors of the Bhopal gas disaster: HERE
Either way, the plain facts are that Union Carbide always owned a controlling share in Union Carbide India Ltd, which it claims to be responsible the responsible party, and this share never dropped below 50.9%. Common sense would describe this as a travesty of justice that the controlling company can walk away scott-free from this contamination disaster caused by the factory of which it was majority owner. Unfortunately the law does not necessarily work on principles of what is ‘right’.
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.
Fortunately for the Bhopal Disaster survivors, this US case is not the only case that may see Union Carbide, or Dow Chemical, liable for some or all of the ongoing disaster in Bhopal. Dow Chemical 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 will take place on August 5th 2014.
The Indian government is seeking an additional amount 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, which are considerably higher, and would raise the required settlement amount to $8.1billion.The other respondents are Union Carbide Corporation, Union Carbide India Limited and Eveready Industries.
In addition, Dow Chemical’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 Union Carbide but has not produced it 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 was issued to Dow in 2014 originally requiring it attend court on July 4th. This will now be delayed for a further 12 weeks. The summons will require Dow to attend the Chief Judicial Magistrates Court, in Bhopal, and explain why UCC has repeatedly ignored court summons in the ongoing criminal case.