Sahu v. Union Carbide

Home / Case / Sahu v. Union Carbide

Sahu v. Union Carbide

In Bhopal, India, people continue to suffer from water contamination. And no one is taking responsibility.

Country:

India

Case Status:

Closed

Issues:

Corporate Accountability, Land Rights

Harms:

Property Damage and Nuisance Due to Water Pollution, Battery, Trespass, Racial Discrimination, Cruel, Inhuman and Degrading Treatment, Negligence

Summary

In 1984, the world’s worst industrial disaster – a toxic gas leak at a Union Carbide pesticide plant in Bhopal, India – killed thousands of people. After the gas disaster, Union Carbide ceased operations and left India, leaving behind toxic waste that continues to pollute the groundwater and soil. To this day, the site remains unremediated, and the pollution continues to harm the local community.

From 1999 until 2016, EarthRights International represented local residents in three lawsuits against Union Carbide seeking a cleanup of the Bhopal plant site. Unfortunately, these cases – Bano v. Union Carbide, Sahu (I) v. Union Carbide, and Sahu (II) v. Union Carbide – were dismissed despite evidence showing that Union Carbide was directly responsible for the damage to the plaintiffs’ health and property.

Further information on the proceedings in India can be found on the Bhopal Group for Information and Action’s website.

Plaintiffs

The plaintiffs in Bano v. Union Carbide were a group of Bhopal residents who originally alleged both injury from the gas disaster and from the water pollution, seeking to represent a class of affected families.

The plaintiffs in Sahu I were 14 individuals, also Bhopal residents near the former pesticide plant, who asserted that their health has been harmed by the plant’s toxic contaminants in their drinking water. These plaintiffs experienced a range of health issues including dizziness, pain in their stomach, hands and legs, gastrointestinal problems, breathlessness, swelling of the limbs, blisters, rashes, and their children have also suffered from developmental delays. Again, the case was filed as a class action on behalf of others who faced exposure to the toxic waste in their drinking water.

The plaintiffs in Sahu II were 17 individuals, overlapping with the Sahu I plaintiffs, whose property near the Union Carbide plant site has been damaged due to contamination from the plant. They also sought to proceed as a class, and asked for Union Carbide to clean up the mess they left behind.

Defendants

Union Carbide Corporation, as well as its former CEO Warren Anderson. In one case, the plaintiffs also named the Indian State of Madhya Pradesh as a defendant, because Madhya Pradesh now owns the former plant site.

Partners

In addition to EarthRights International (ERI), counsel for the plaintiffs have included Sharma & DeYoung LLP, Curtis V. Trinko, Hausfeld LLP, and Cohen Milstein Sellers & Toll PLLC.

EarthRights International has worked closely with the International Campaign for Justice in Bhopal and the Bhopal Group for Information and Action to pursue justice for Bhopal communities.

1969 – The American chemical company Union Carbide, operating through its Indian subsidiary, began building a pesticide plant in Bhopal, India. The plant’s design was based on proprietary Union Carbide plans, and approved by Union Carbide engineers, and a Union Carbide employee oversaw the plant’s construction. Between 1977 and 1984, the plant’s primary purpose was to manufacture the pesticide carbaryl, marketed as Sevin.

The plant used a process to manufacture carbaryl that relied on phosgene – best known as a chemical weapon – and the highly toxic methyl isocyanate (MIC) as intermediate chemicals. Although subsequent research allowed the production of carbaryl without using MIC, that process was more expensive, and it was never adopted at Bhopal. During the plant’s operations, the plant’s toxic waste was disposed of in and around the factory, in open “solar evaporation” ponds, waste pits and landfill areas.

1984 – On the night of December 2, poisonous gas – including MIC and other chemicals – leaked from the UCIL plant, immediately killing over 5,000 people and injuring many thousands more, in what is still considered the world’s worst industrial disaster. Evidence from the Indian Council for Medical Research reveals that over 20,000 people have died because of MIC exposure to date. Studies have also shown that people continue to suffer long-lasting health impacts from the exposure. After the gas disaster, the plant stopped operations.

In December 1984 victims of the gas disaster sued Union Carbide in U.S. federal court in West Virginia. Dawani et al. v. Union Carbide Corp., S.D. W. Va. (84-2479).

1985 – Over 100 different actions were filed in the U.S. shortly after Dawani was filed, and the cases were ultimately consolidated before a federal court in New York.

On March 29, 1985, India passed the Bhopal Gas Leak Disaster (Processing of claims) Act, giving the Government of India the exclusive right to represent the victims of the gas disaster. Pursuant to this Act, the Government of India filed a lawsuit in the U.S. based on the claims in the previously-filed individual actions.

1986 – On May 12, 1986, the federal court dismissed the U.S. lawsuits under the doctrine of forum non conveniens, ruling that India was the more appropriate place to sue. Following the dismissal in the U.S., the Government of India filed a lawsuit in the District Court at Bhopal.

1987 – Criminal charges were filed in India against Union Carbide Corporation, Union Carbide Eastern, Inc., Union Carbide CEO Warren Anderson, Union Carbide India Limited, and eight of its managers.

1989 – In February 1989, the Supreme Court of India approved a $470 million settlement between Union Carbide and the Indian government (on behalf of the victims). This amounted to less than $10,000 for each death, let alone the later suffering and deaths of survivors.

1994 – Union Carbide sold its Indian subsidiary to McLeod Russel (India Limited), and Union Carbide India Limited was renamed Eveready Industries India Limited.

1998 – In July, Eveready surrended the land for the Bhopal site to the government of Indian state of Madhya Pradesh, which still owns the site today.

1999 – In November 1999, several victims of the gas disaster and the ongoing pollution filed [TM1] a lawsuit against Union Carbide and former CEO Warren Anderson in U.S. federal court in New York, in the case known as Bano v Union Carbide. This case alleged that Union Carbide violated international human rights law, environmental law and international criminal law. The Plaintiffs brought their claims under the Alien Tort Statute and other laws. They sought compensation for the harm suffered as a result of the gas disaster, and for the ongoing pollution and contamination at the Bhopal plant from the toxic waste leakage. They also sought an order requiring Union Carbide to clean up the contamination.

2000 – In August 2000, the federal court dismissed the Bano case, finding that under the Bhopal Act the Indian government still had the exclusive right to represent injured residents for claims arising out of the gas disaster.

2001 – In February 2001, Union Carbide became a wholly-owned subsidiary of Dow Chemical.

In November 2001, the Second Circuit Court of Appeals reinstated [link to decision] the parts of the Bano case seeking compensation for pollution that was not directly related to the gas disaster. The court agreed that the claims relating to the gas disaster were barred by the 1989 settlement. The case was returned to the district court for consideration of the pollution claims.

2003 – On March 18, 2003, the federal court once again dismissed Bano. The court found: (1) that the named Plaintiff’s claims were barred by statute of limitations, meaning that the Plaintiff’s ability to bring a lawsuit for the alleged harms expired; (2) the organization that filed the lawsuit on the victims behalf did not have standing to bring the claims; (3) an order requiring Union Carbide to clean up the plant would be too difficult to enforce.

2004 – On March 17, 2004 the Second Circuit Appeals Court partly reversed the decision. The Court found that: (1) Haseen Bi’s, the named Plaintiff, personal injury claims were time-barred, but her property claims could proceed; and suggested that (2) Union Carbide could be ordered to clean up individual victims’ property, and also the plant site if the government were to intervene to require this relief or sent a letter in support of the clean-up. The case was sent back to the district court with instructions to consider whether the case could proceed as a class action.

In June 2004, the Government of India sent a letter to the court indicating that the government had no objections to remediation and would cooperate in a clean-up.

In November 2004 fourteen additional families from Bhopal filed a new case in federal court in New York, known as Sahu v. Union Carbide, and later known as Sahu I. Because the Bano case now included only claims for property damage, the Sahu plaintiffs sought to proceed as a class action on behalf of persons harmed by exposure to toxic contaminants in their drinking water. As set out in the complaint, the contaminated water was in many cases the plaintiffs’ only water source. As a result, the plaintiffs experienced a range of health issues including dizziness, pain in their stomach, hands and legs, gastrointestinal problems, breathlessness, swelling of the limbs, blisters, rashes, and their children have suffered from growth retardation, in addition to the above listed problems.

2005 – In October, while considering whether the Bano case could proceed as a class action, the federal judge instead simply dismissed the entire case, finding that the lead plaintiff did not own her property.

In December 2005, the federal court dismissed the majority of the Sahu I case by granting summary judgment. The court relied on its previous reasoning in Bano to dismiss the claims for injunctive relief. The court also found that the plaintiffs did not establish that Union Carbide was liable for the claims alleged, either directly or jointly with its Indian subsidiary. The court did not dismiss the plaintiffs’ claims based on a piercing of the corporate veil.

2006 – In August 2006, the Second Circuit Court of Appeals affirmed the dismissal of the Bano case.

In November 2006, the district court granted summary judgment in Sahu I on the one remaining theory of liability, piercing the corporate veil.

2007 – Because the Sahu I case only alleged personal injury and the property damage claims had been dismissed in the Bano case, a new group of Sahu plaintiffs filed a new lawsuit against Union Carbide asserting damage to their property. The case was put on hold while the dismissal of the Sahu I case was on appeal.

2008 – In November 2008, the Second Circuit vacated the dismissal of Sahu I on grounds that the trial court did not provide the plaintiffs notice that it intended to rule based upon evidence outside the complaint, and sent the case back to the district court for further proceedings.

2012 – On June 26, 2012, the District Court once again granted summary judgment to the defendants in Sahu I. Despite evidence showing that Union Carbide provided the design for the plant, the court held that only the Indian subsidiary was responsible for the Bhopal plant.

2013 – On June 27, 2013, the Second Circuit Court of Appeals upheld the district court’s dismissal of Sahu I. Union Carbide proceeded to argue that Sahu II should be dismissed on the same grounds.

2014 – On July 30, 2014, the federal court granted summary judgment in Sahu II. The court again ruled that Union Carbide itself was not sufficiently involved in the Bhopal plant, even though the project manager for the construction of the plant submitted a statement saying that he was employed by Union Carbide. The court also refused the plaintiffs’ request to depose the project manager.

2016 – In May, the Second Circuit Court of Appeals affirmed the dismissal of the case. The appeals court took a different approach, accepting the project manager’s statement, , but finding that even if he was employed by Union Carbide he had been “loaned” to the Indian subsidiary, and therefore Union Carbide was not liable for his actions.[RH2] Although the plaintiffs sought rehearing of the case, the court declined to reconsider its decision.

Legal Issues

The seventeen-year saga of the Bano and Sahu cases raised numerous legal issues. In the initial Bano case, the plaintiffs had asserted claims for violations of international law due to environmental contamination, which were rejected by the courts. Ultimately, the cases were dismissed primarily due to the court’s conclusion that the evidence presented was not sufficient to show that Union Carbide was directly involved in the Bhopal plant’s design, construction and operation.

The plaintiffs won, however, on several significant issues. In its 2004 decision, the Second Circuit Court of Appeals ruled that the statute of limitations did not bar long-running claims for property damage if the pollution was ongoing. The court also noted that it was possible for a U.S. court to order Union Carbide to clean up the plaintiffs’ own property in India, and to order Union Carbide to clean up the plant site if the Government of Madhya Pradesh (which now owns the site) were to request that assistance. In its 2008 decision, the Second Circuit established that it was improper for the district court to dismiss the case without allowing development of the evidence.

Press Releases

Bhopal Pollution Victims Petition for Rehearing After Court Ignores Their Pleas | June 22, 2016

Court Rules that Union Carbide Can’t Be Sued for Ongoing Pollution in Bhopal | May 24, 2016

Bhopal Water Pollution Victims Ask Appeals Court to Hold Union Carbide Accountable | September 1, 2015

Nearing the 30th Anniversary of the Bhopal Disaster, Pollution Victims ask U.S. Appeals Court to Hold Union Carbide Accountable | November 24, 2014

Despite evidence that Union Carbide directly oversaw construction of its notorious plant in Bhopal, India, U.S. court denies justice to victims of pollution | July 31, 2014

New evidence shows Union Carbide’s role in designing and building Indian chemical plant that killed thousands and continues to pollute Bhopal’s water | February 5, 2014

Appeals court denies justice to victims of Union Carbide’s pollution in Bhopal | June 27, 2013

Blogs

This Legal Brief Is Going To Move You To Tears | Katie Redford, Huffington Post

India’s War on Activists | Michelle Harrison

The UN Wants to Survey the Bhopal Site. We Hope They Do. | Rick Herz

On the 30th Anniversary of the Bhopal Disaster | Rick Herz

Near Bhopal disaster site, contamination only worsens with time | Marissa Vahlsing

Bhopal Convictions: Justice Delayed and Denied | Rick Herz

Press

India West | Bhopal Victims Launch Final Try to Get Union Carbide to Clean Up Mess | July 6, 2016

The Hindu | Bhopal victims appeal to U.S. court again | June 23, 2016

Common Dreams | Justice Denied: US Court Rules Bhopal Victims Can’t Sue Union Carbide | August 1, 2014

OneWorld South Asia | Bhopal tragedy: Victims move higher US court against UCC | December 18, 2014

Law360 | Bhopal Victims Decry ‘Inertia,’ Ask 2nd Circ. For 2nd Shot | June 22, 2016

The Hindu | Bhopal victims appeal to U.S. court again | June 23, 2016

Common Dreams | Justice Denied: US Court Rules Bhopal Victims Can’t Sue Union Carbide | August 1, 2014

The Hindu | U.S. court rules in favour of Union Carbide | July 31, 2014

 

Banner image photo credit: Jack Laurenson