Two weeks ago, I traveled with another ERI legal intern from Washington, D.C., to New York City to watch ERI’s Rick Herz argue for justice for the residents of Bhopal, India, at the Second Circuit Court of Appeals. ERI represents these plaintiffs in a lawsuit against Union Carbide for its part in creating a faulty waste disposal system that polluted the water of thousands of people. Rick was urging the panel to reverse the trial court’s dismissal of the case.
Bhopal has become famous as the site of the 1984 toxic gas leak that claimed the lives of over 5,000 Indian citizens. Almost 30 years later, the community is still plagued by toxic waste seeping into the groundwater and poisoning local water supplies. The extensive contamination is causing birth defects, neurological disorders, and increased cancer rates in the area.
From a law student’s perspective it is a rare and exciting opportunity just to be in a Second Circuit courtroom, listening to well-crafted arguments and the concerns of highly regarded judges. But it was also particularly enriching on a personal level. Human rights and environmental protection are the precise issues that brought me to law school. Getting the chance to sit in and observe the arguments in an important case concerning corporate liability for harms felt in Bhopal was an invaluable learning experience.
During the four-hour bus ride, we scrambled to put together copies of every case cited in the briefs into a binder, flagged specific pages cited with tabs, and highlighted quoted text, just in case Rick would need it during his argument. Papers, highlighters, binders, and red, green, and blue tabs were everywhere and we definitely drew a few curious stares from fellow travelers as we awkwardly negotiated the narrow space on the bus.
We knew Rick was well prepared and probably would not need the references, but it was rewarding to be able to contribute in a small way. Although the court would not be deciding whether the plaintiffs would win their case, a lot was at stake and it all hinged on whether we could convince the judges that we had enough evidence of Union Carbide’s participation to at least let a jury hear the case.
The panel included Judges Calabresi, Cabranes, and Parker. They reserved our case for last, so we waited with anticipation for our turn. When Rick began, the judges almost immediately expressed their concern about whether Union Carbide, as a parent company, could be held liable for its Indian subsidiary’s misconduct. This was somewhat unsettling to hear and set a tone that they were really going to push Rick on his arguments.
Still, we were confident that those concerns would not be fatal to our case. As Rick argued, Union Carbide can still be held liable under New York nuisance standards because it directly participated in designing the waste disposal systems and oversaw the project in Bhopal. In response, Union Carbide’s attorney claimed that the corporation should not be held responsible for how the Indian subsidiary used technology that Union Carbide supplied.
At first, the judges seemed uncomfortable with our arguments and more sympathetic to Union Carbide as a parent company relatively removed from its subsidiary’s day-to-day operations. But the panel also appeared to grow wary of adopting such a remote liability standard. Judge Calabresi, a widely-renowned expert in tort law, explained that Union Carbide’s liability may depend on how foreseeable it was that UCIL would not be able to safely use Union Carbide’s technology. While Union Carbide’s attorney contended that the corporation could not foresee the harm, Rick highlighted evidence that Union Carbide knew that the technology posed a problem in Bhopal based on problems with the same technology used in the United States.
Overall, the panel asked tough questions of both sides, and Rick did an excellent job explaining that Union Carbide could be liable for their participation and arguing that the plaintiffs should have an opportunity to have their claims heard by a jury. I left New York thinking that it would probably be a close call, but still felt positive that we at least enough for the case to go to trial.
Unfortunately, I was wrong. The Second Circuit issued its decision last week, with deeply disappointing results.
In a very brief opinion, the court held that “no reasonable juror could find that UCC participated in the contaminated drinking water.” It explained that “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 minimal involvement in remediation amount to participation in the failure of the” disposal system that caused the harms in Bhopal. But if these actions are not enough to show participation and potential liability in a nuisance case, then what on earth is? It’s bewildering to imagine what more the court could have possibly needed to hear. The opinion did not offer many hints either. My take away from the decision is that plaintiffs like those in Bhopal must now bear a tremendous burden and show extensive, direct corporate participation to even have a prayer for justice.
The judges did seem somewhat apologetic in the opinion, expressing sympathy for those in Bhopal who have suffered “terrible and lasting injuries from a wholly preventable disaster for which someone is responsible.” But a token of compassion does not replace the want for justice. I’m disappointed that this decision seems to have done little except fortify domestic corporations’ ability to shield themselves from liability through foreign subsidiaries.