Bhopal victims appeal to US court again

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Indians living with the consequences of water pollution at site of the 1984 Bhopal poison gas disaster sought to keep alive their U.S. lawsuit against Union Carbide Company (UCC) when they filed, this week, arguments with the U.S Court of Appeals for the Second Circuit that the company behind the deadly leak of methyl isocyanate gas was continuing to foul local wells from its plant located in the area.
The arguments by 17 identified Indian nationals against UCC, the state of Madhya Pradesh and former UCC head Warren Andersen come a month after the latest ruling by the New York federal district court that UCC could not be sued in the Sahu II case, despite “compelling evidence that UCC caused the harm,” including arguments presented by the plaintiffs that a UCC employee, Lucas John Couvaras, managed the construction of the plant and was able to provide substantial new evidence that demonstrated UCC’s involvement.
On December 2, 1984, poisonous gas from the Bhopal chemical plant enveloped nearby communities, killing thousands. While the water pollution here is unrelated to the gas disaster, it reflects leaching of toxic material from the same plant ever since it was shut down.
In this week’s developments the residents of Bhopal represented by EarthRights International (ERI) petitioned the federal appeals court to reconsider dismissal of their lawsuit against UCC for polluting their drinking water, an ERI representative said.
In their petition the Bhopal residents argued that the latest summary order issued on May 24, 2016, which said that the plaintiffs’ “offer of new evidence was insufficient to raise an issue of material fact in opposition to UCC’s summary judgment motion,” was an example of how this case “had not been treated like other cases – in which courts wait for motions to dismiss, consider only arguments raised by the parties, apply settled legal standards, and consider the evidence before them.”
In court this week ERI drew attention to the fact that UCC’s own employee led the construction of the polluting plant and that established its responsibility; and also that qualified experts had testified that the company’s strategy of storing toxins in ponds above an aquifer was a “high risk” strategy that caused the resulting pollution.
In an earlier, similar, motion the plaintiffs said that they had provided even more evidence demonstrating UCC’s responsibility, in this case the testimonies of “Two leading experts [who] concluded that UCC’s technology and waste disposal strategy for the plant was improper for the site, and caused the water pollution that we still see today,” said Richard Herz, Senior Litigation Attorney at ERI. At the time ERI Counsel Marco Simons also noted that although the U.S. courts have shied away from any further involvement in the gas disaster case since the passage of the Bhopal Act, “If we establish in the U.S. that UCC was responsible for the plant that could be significant for the case in India” from an evidentiary standpoint.

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