Bhopal verdict: US judiciary is known for indefensible judgments

Judges of all ilk and nationality will also be judged in the court of history and humanity

When Josh F Keenan, District Judge of the District Court of United States of America pronounced his verdict on June 26, 2012 in the case of Janki Bai Sahu, et al Vs Union Carbide Corporation and Warren Anderson rubbed salt to the injury of the victims of industrial disaster in India’s Baghdad, it was not at all surprising. The judge in question revealed his cruelty and insensitivity for the third time by referring to victims’ quest for justice as “a discovery expedition worthy of Vasco da Gama.”

This gives a sense of deja vu. The US Environmental Protection Agency (USEPA) issued a final rule on July 12, 1989, banning most asbestos-containing products. After spending ten million dollars and conducting a ten year study, USEPA accumulated a 100,000 page administrative record, announcing that it would phase out and ban virtually all products containing asbestos. This ban was to apply to the manufacturing, importing, processing and distribution of asbestos products. US EPA’s grounds for the ban states: “asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.

But the verdict of October 18, 1991 by the Fifth Circuit U.S. Court of Appeals of New Orleans in the asbestos matter overturned the ban imposed by USPEA. Giving a severe blow to the reputation of US judiciary, the Appellate Body of World Trade Orgnisation, World Health Orgsanisation and several other UN agencies besides more than 50 countries found that USEPA was right because it is impossible to use asbestos in safe and controlled manner.

Ironically, in the US, Dow Chemicals Company has set aside $2.2 billion to address future asbestos-related liabilities arising out of the Union Carbide acquisition. Liveris heads Dow Chemical Company that purchased Union Carbide Corporation (UCC) and its Indian investments in 1999 has consistently denied inheriting any liability for the Bhopal gas disaster due to leakage of 40 tonnes of lethal methyl isocyanate (MIC) gas from UCC plant into the surrounding environment, which has caused more than 20,000 deaths and 100,000 disabilities. UCC formerly made products containing asbestos, and UCC once mined asbestos for sale to customers. The mine of the UCC was was sold in 1985. Hundreds of thousands of people have sued asbestos companies that made products containing asbestos. Many manufacturers of asbestos-containing products are bankrupt as a result of asbestos litigation.

If Dow can assume responsibility for asbestos-induced illnesses among victims in USA, how can it deny responsibility towards the victims of Bhopal disaster and its continuing toxic legacy in an explicit case of double standards?

The victims rightly sought monetary damages and medical monitoring for injuries caused by exposure to soil and drinking water polluted by hazardous wastes produced by Warren Anderson headed Union Carbide Corporation (UCC) and its arm Union Carbide India Limited (UCIL) given the fact that parent company and its subsidiary is one entity.

The victims rightly hold UCC and Anderson liable for their injuries on the grounds that they were direct participants and joint tortfeasors in the activities that resulted in the pollution, they worked in concert with UCIL to cause, exacerbate, or conceal the pollution and UCIL acted as UCC’s alter ego justifying piercing the corporate veil.

UCIL was incorporated in India in 1934. In 1969, the Bhopal Plant begun operations as a pesticide formulations plant on land leased from the Indian State of Madhya Pradesh. As a formulations plant, UCIL imported the chemical components of pesticide products and mixed the final product, such as the “Sevin” pesticide, in India. At that time, UCC owned 60% of UCIL. In the latter half of the 1970s, the Bhopal Plant was back-integrated into a facility capable of manufacturing the pesticides itself; in connection with this project, UCC’s ownership interest in UCIL was reduced to 50.9%.

The existence UCC’s control of UCIL is a universal truth. US District has erred in choosing not to pierce the corporate veil of UCC.

The government of India had filed a suit on September 5, 1986 for damages in the court of district judge, Bhopal (Regular Civil Suit N. 113/86) against the US company, Union Carbide Corporation, Connecticut, USA on behalf of all the persons, who have suffered damages due to Bhopal gas leak disaster praying for "a decree for punitive damages in an amount sufficient to deter the defendant Union Carbide and other multinational corporations involved in similar business activities from willful, malicious and wanton disregard of the rights and safety of citizens of India." The Indian government noted in its reply in the court that Union Carbide's management policies, states that "it is the general policy of the corporation to secure and maintain effective management control of an affiliate."

The higher US judiciary should accept the original submission of the government of India that "the corporation and its subsidiaries are treated as a unit, without regard to the location of responsibility within that unit". Consequently, an illegal act by it be deemed as the act of the corporation, without consideration to its location of responsibility. The customary alibi of corporations like Dow Chemicals is an act in sophistry designed to conceal fact of crime and criminals of the upper-world. The US government should disclose all the trade secrets of the Union Carbide Corporation and its research and development centre that Union Carbide operated in Bhopal since 1976 that was suspected to be experimenting with wartime use of chemicals. This suspicion regarding the disaster being a consequence of experimenting with war time chemicals is yet to be probed. US government should undertake and facilitate such probe.

The quest of Bhopal victims for justice must continue and the truth will prevail. The judges of all ilk and nationality who ridicule victims’ quest will also be judged in the court of history and humanity.

Gopal Krishna

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