Frontline Volume 20 - Issue 24, November 22 - December 05, 2003
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LITIGATION

Caucus help in Bhopal case

V. VENKATESAN

Nine United States Congressmen file an amicus brief demanding the indictment of Union Carbide Corporation, after a district court rejects the Bhopal gas disaster survivors' plea for compensation.



Victims of the Bhopal gas tragedy at a rally in March to protest against the U.S. Federal District Court's judgment in their civil suit seeking compensation from the Union Carbide Corporation.

IN March, the survivors of the 1984 Bhopal gas disaster faced a setback in their civil suit before a United States court seeking compensation from Union Carbide Corporation (UCC), which owned the Bhopal pesticide plant at the time of the disaster, for environmental damage. John F. Keenan, Federal District Judge in New York, rejected their plea that UCC caused environmental pollution in Bhopal by recklessly dumping, storing and abandoning large quantities of highly toxic pollutants at its plant despite knowing that they were likely to contaminate water and land in its neighbourhood.

Keenan did not find merit in their claims seeking relief under the New York common law for negligence, nuisance, strict liability, medical monitoring, trespass and equitable relief. He concluded that claims for damages were time-barred, the plaintiff organisations lacked standing and that equitable relief in this case would be infeasible and inappropriate.

The Bhopal Group for Information and Action (BGIA) and other support groups along with a few individual victims and survivors of the disaster have appealed against Keenan's judgment in the U.S. Court of Appeals of Second Circuit. The case arose out of seven claims of the survivors-plaintiffs in the New York District Court in 2000, seeking monetary and equitable relief under various common law theories for environmental harm allegedly attributable to Union Carbide of India Limited's (UCIL) Bhopal plant, but not related to the gas leak. Keenan had dismissed these claims, along with other claims. The Appeals Court returned the case to the District Court in November 2001, in order to permit Keenan to consider the seven claims afresh, as in its view he had erred in dismissing them (Frontline, January 4, 2002).

As the Appeals Court is set to hear the fresh appeal against the March judgment, the claims have received articulate support from a few distinguished U.S. legislators. Nine members of the U.S. House of Representatives, including Frank Pallone, co-founder of the congressional India Caucus, have filed an amicus brief urging the court to hold UCC responsible for the disaster. "There is strong support in Congress for holding those responsible for this horrific tragedy accountable for their actions," Pallone said.

Dow Chemical acquired UCC in February 2001 and has yet to accept responsibility for the disaster or address the liabilities it has inherited.

The India Caucus is an informal pressure group that came into existence in 1994 to educate Congress on issues concerning India so that it could question the administration and influence policy. Today, it is seen as the force behind the greatly improved Indo-U.S. relations. Although the strength of the caucus is 120-odd members, the fact that only a few of them have signed the brief underlines the symbolic nature of the intervention in the ongoing litigation.

The filing of the brief by Congressmen, as the plaintiffs' counsel Himanshu Rajan Sharma pointed out, was not entirely new. Members of Congress have filed amicus briefs in other cases that had either some wider public significance or affected specific legislation of Congress. In this case, the members who filed briefs were those who belonged to the India Caucus or the House Select Committee on International Affairs.

Under American law, anybody with an identifiable interest in a case can file an amicus brief, but the court need not necessarily take it into consideration. The court looks at the nature of the interest and sees if the brief raises additional arguments (other than those of the parties) to see if it is worth accepting. As a general rule, courts usually accept most amicus briefs. How much weight the court gives to them is a matter for its own discretion, Himanshu Rajan Sharma explained through e-mail to Frontline. The brief calls them amicus curiae only because they are petitioning to be granted that status by the court, he said.

In their brief, the Congressmen expressed their long-standing interest in the U.S.' public policy of protection and advancement of the environment around the world and their concern over the impact of an affirmation of Keenan's judgment on U.S. public policy, commercial interests and foreign relations. They pointed out that issues involving the interests of foreign states regarding environmental pollution or harm caused by American multinational corporations were increasingly coming up before U.S. courts either because foreign jurisdictions are unable or unwilling to adjudicate such claims or where, as in the case of UCC, U.S. MNCs have refused to submit to the jurisdiction of foreign courts. They felt that such cases should be adjudicated fairly before U.S. courts, and that the decisions should not be based on spurious assumptions about extraterritorial jurisdiction, public policy limitations and alleged interference with the laws and interests of foreign sovereigns.

The Congressmen asserted that the U.S. had a strong legal and public policy interest in offering redress to victims of environmental pollution and harm caused by U.S. MNCs operating overseas when the proximate cause of that environmental pollution could be traced to corporate activities or decisions taken in the U.S. Additionally, the U.S. had an obligation under international law, evidenced by its ratification and adherence to several treaties or conventions, in affording judicial redress to victims of environmental harm caused by its companies overseas, they suggested.

The amicus brief regretted that Keenan's court did not consider carefully the novel questions raised by the issuance of equitable relief for environmental remediation outside the U.S. It revealed that extraterritorial injunctive relief had been granted in a variety of other contexts involving property located outside the U.S. "There is simply no compelling reason why such relief would not be practicable in this case," the brief noted.

The "polluter pays" principle has been affirmed by international law and the American common law as well as congressional enactments as the appropriate means to address environmental harm regardless of where it occurs. This recognises that the polluter should pay for any environmental damage created, and that the burden of proof in demonstrating that a particular technology, practice or product is safe should lie with the developer, not the general public, according to the brief. "That principle cannot and should not be ignored or disregarded simply because the polluter has abandoned its facility, sold its shares in a subsidiary or otherwise effected a change of ownership," the nine Congressmen told the court.

In the brief, they were vociferous in their indictment of Judge Keenan's reference to India's interests getting impugned by a grant of equitable relief from U.S. courts, without proffering any definite evidence of any law, statute or other public policy to support such a claim. "The District Court's unfounded inference or assumption about these alleged interests is arguably more offensive to the foreign state's sovereignty than any grant of injunctive relief from the U.S. courts," they said, urging the Appeals Court to reverse Keenan's unsolicited attribution to the Republic of India's purported interests that prevent equitable relief in the Bhopal case. Keenan's court contradicted itself by acknowledging the Indian government's readiness to cooperate with such equitable relief, as revealed by the plaintiffs, yet based its decision on an exaggerated deference to what it assumed to be India's sovereign interests.

The Congressmen also lamented the court's conclusion that UCC's funding of a hospital in Bhopal as part of its efforts to avoid criminal prosecution in India somehow rendered the plaintiffs' claims for medical monitoring relief inequitable. "The District Court apparently conceded that the hospital conducts no medical monitoring of anyone whatsoever in Bhopal, but nonetheless found that the hospital's mere existence was sufficient to warrant dismissal of claims for medical monitoring relief," they wrote.

As UCC has refused to submit to the jurisdiction of Indian courts, the denial of equitable relief in this case may well amount to a denial of any remedy at all to the victims of environmental harm caused by a U.S. company, they cautioned the Appeals Court. "Such a result would threaten to breach, or at least undermine, the international legal obligations and public policy of the U.S. and cast the U.S. in the unfavourable role of a nation that is unable or simply unwilling to live up to these international commitments," they said.

Observers note that had the Congressmen raised these issues in the debate when the House was in session, it would have created a greater impact on American public opinion, which has been reticent on the issue of holding UCC-Dow Chemical accountable for the environmental disaster in Bhopal.

The Appeals Court's response to the issues raised in the brief would, therefore, determine the effectiveness of the U.S. political and judicial processes in rendering due justice to the survivors of the Bhopal disaster. A favourable response could bring the U.S. government - which has been delaying a decision on the Indian government's request for extraditing former UCC chairperson Warren Anderson to India to face criminal charges in the case - under considerable pressure.

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