Today the U.S. Court of Appeals for the Second Circuit in New York rejected the plaintiffs’ appeal in Sahu v. Union Carbide Corp., a lawsuit on behalf of residents of Bhopal, India, against Union Carbide Corp. (UCC), now owned by Dow Chemical, for water pollution. A poisonous gas leak from the same plant killed over 5,000 people in 1984, and UCC largely abandoned the site, allowing toxic wastes to leach into the local water supply. Despite voluminous evidence showing UCC’s involvement in every aspect of the creation and disposal of toxic wastes at the Bhopal plant, the court ruled that the plaintiffs could not present their case to a jury.
The trial court had found that UCC was not sufficiently involved in the acts at the plant, which was officially operated by its subsidiary Union Carbide India Ltd., in order to be held liable. However, ERI and its co-counsel presented evidence to both the trial court and the appeals court that UCC was intimately involved, including that the pollution came from technology provided by UCC, UCC provided that technology even though it knew the process would threaten plaintiffs' water supply, and UCC came up with the waste disposal plan that ultimately contaminated plaintiffs' drinking water and that of thousands of their neighbors.
“I am startled and disappointed by this decision, but remain committed to seeking justice for the victims of Union Carbide’s toxic pollution” said Rick Herz, Litigation Coordinator for EarthRights International (ERI) and counsel for the plaintiffs, who argued the appeal before the Second Circuit. “The Second Circuit acknowledged UCC’s involvement in creating the toxic waste, but ruled that they had no responsibility.”
The Second Circuit’s decision recognizes that Plaintiffs had presented evidence that UCC approved of the plan to “back-integrate” the plant, transferred technology for pesticide manufacture and sent a design for the waste disposal system. Yet it inexplicably concluded that this was insufficient to constitute “participation” in the conduct that caused the harm, despite prior caselaw finding far less involvement to be sufficient for liability.
In addition to ERI, counsel for the plaintiffs include Sharma & DeYoung LLP, Curtis Trinko, Hausfeld LLP, and Cohen Milstein Sellers & Toll PLLC. The plaintiffs and their counsel are evaluating next steps following the decision.
EarthRights International is a NGO with offices in Southeast Asia, the United States and Peru specializing in protecting human rights and the environment, and corporate and government accountability. More information on ERI is available at https://www.earthrights.org.