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Last night a New York federal court found that Union Carbide Corp. (UCC) could not be sued for ongoing contamination from the notorious chemical plant in Bhopal, India, despite evidence that construction of the plant was managed by a UCC employee – evidence that the plaintiffs are confident will lead to a reversal of the erroneous decision on appeal.

EarthRights International (ERI) filed the lawsuit Sahu v. Union Carbide Corp. on behalf of residents of Bhopal whose land and water are contaminated by waste from the plant. A poisonous gas leak from the same chemical plant killed over 5,000 people in 1984, and UCC largely abandoned the site, allowing toxic wastes to leach into the local water supply. UCC was intimately involved in the creation and disposal of toxic wastes at the Bhopal plant, and the manager who oversaw the construction of the plant confirmed that he worked for UCC, not for the Indian subsidiary that officially operated the plant. Nonetheless, federal judge John Keenan ignored this evidence, ruling that UCC was not sufficiently involved in the acts at the plant and that the project manager actually worked for the subsidiary.

“The evidence demonstrates that Union Carbide was intimately involved in every aspect of designing and building the Bhopal plant, including the waste disposal systems that caused the pollution,” said Marco Simons, counsel for the plaintiffs and Legal Director for EarthRights International. “The court’s decision discounted this evidence, and it depends entirely on assuming that the manager who oversaw the construction of the Bhopal plant – who said he worked for Union Carbide – didn’t really know who he worked for.”

The Second Circuit Court of Appeals, which will hear the plaintiffs’ appeal, has previously reversed several prior dismissals of cases against UCC. Because judges are not supposed to ignore or weigh evidence without letting a jury hear the case, the plaintiffs believe that the Second Circuit will correct this error.

Co-counsel Rajan Sharma, of the New York law firm Sharma & DeYoung, added, “These families have been living with Union Carbide pollution for decades. We remain committed to seeking the justice that they deserve.”

The plaintiffs have also sued the Indian state of Madhya Pradesh, which now owns the Bhopal site, to compel its cooperation in the cleanup of the contamination.  As of today, neither the Government of India nor the State of Madhya Pradesh has appeared before the court.

The Sahu lawsuit is No. 07 Civ 2156 in the Southern District of New York. In addition to EarthRights International and Sharma & DeYoung LLP, the plaintiffs are represented by the Law Offices of Curtis V. Trinko.