After an appellate court in the United States rejected claims by Bhopal city residents, seeking compensation from Union Carbide for environmental contamination around the site of the world's worst industrial disaster, plans are afoot to have the case transferred to India.
"Every setback presents us with new opportunities and only strengthens our resolve," Satinath Sarangi, of the Bhopal Group for Information and Action (BGIA), one of several activist groups working with the survivors of a runaway reaction in Union Carbide's pesticides plant in this central Indian city in December 1984, that left an estimated 3,500-7,500 people dead and many more maimed.
Without ruling on whether or not Union Carbide ought to remediate the environment, the court in New York observed on Aug. 10 that any order by it directing Union Carbide to clean up will run into technical problems "because of the impracticality of a court-supervised clean-up project on land owned by a foreign sovereign."
"We're considering a number of options. If the U.S. court feels that the Indian government's control over any remediation ordered by it will cause conflicts, it can direct Union Carbide to appear in the Indian court. Let the Indian courts decide," he said speaking with IPS.
In the same order, the court also rejected an appeal by Bhopal resident, Hasina Bi, seeking reinstatement of claims for property damages and remediation of the Union Carbide plant site and contamination of groundwater. The court cited lack of legal tenure over her property. "The record reflects that Bi resides illegally on government-owned ground. She therefore cannot sustain claims for trespass or private nuisance under New York law," Judge Edward R. Korman noted in his ruling.
But the "summary order" cannot be cited as a precedent, and applies only to Bi's individual appeal. The U.S. court is yet to rule on another appeal by Janki Lal Sahu and others who have claimed damages for health effects due to contamination, long-term medical monitoring, and compensation for private property damage.
Bi appealed after her claims and those of 14 others asking a U.S. District Court in New York to direct Union Carbide to clean up the site and aquifers were dismissed by Judge John Keenan last October. It was Judge Keenan who, 12 years ago, deemed that the case for compensation should be tried in India rather than in the U.S.
As a result, after five years of legal wrangling, the Indian Government was forced to reach an of court settlement with Union Carbide for 470 million US dollars, a fraction of the three billion dollars, originally claimed. Union Carbide also refused to pay the 220 million dollars demanded by survivors' organisations as interim relief.
But the issue of who will eventually pay for the cleaning up thousands of tons of toxic wastes abandoned by Union Carbide in and around its factory site remains.
At least 300 tons of obsolete pesticides, including DDT formulations, lie within the factory premises. Routine pollution and contamination caused by rotting equipment and reactors at the derelict factory has created toxic hotspots within the site. In some places, mercury levels are more than six million times higher than background levels, according to a 1999 study carried out by the international environment lobby Greenpeace.
Studies by the Indian government have since confirmed that many of these poisons have seeped into the aquifers.
In Jun. 2004, the Indian government, under pressure from survivors, submitted a letter to the New York court supporting their litigation. The letter stated that the Indian Government had no objection to any court in the U.S. directing Union Carbide to clean up the factory site. It also clarified that "the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no bearing on or relation whatsoever to the environmental contamination issuesà"
The U.S. court, however, has ruled that "the letter does not obviate any of the sensitive and severe difficulties identified by the district court and by this court regarding the administration of remediation of land owned by a foreign sovereign in its own country."
While the decision is a setback to the Bhopal survivors, it may still be premature for Union Carbide to celebrate. "Government of India is not party to the U.S. Court case. We have approached the Madhya Pradesh (state) High Court seeking that liability be fixed on the polluter," says Yashwir Singh, director of the ‘Bhopal Cell' at India's ministry for chemicals. "According to our rules, the polluter will have to pay."
The case in the High Court filed by a resident of Bhopal names Union Carbide, Eveready Industries (Carbide's successor in India) and Carbide's new owner Dow Chemical as respondents. According to Singh, "any one or more of them could be held liable."
After clean drinking water, pursuing Carbide for criminal liability and for environmental remediation are the two most important demands of Bhopal survivors.
Last April, nearly 50 Bhopal residents and their supporters marched 800 km to the national capital of New Delhi to sit on a week-long hunger strike in the capital to press a package of demands. "We won most of our demands, but the Prime Minister was very nervous when it came to pinning liability on Carbide or its American parent," said Rachna Dhingra, one of the hunger-strikers and a member of the International Campaign for Justice in Bhopal. "But we're determined that the clean up should happen, and at the cost of Carbide or Dow. Otherwise, it will tell corporations what they want to hear -- that they can come and do as they please in India," Dhingra said.
Bi is among 20,000 indigent residents who are still waiting for the Madhya Pradesh state government to obey a Supreme Court order directing it to provide Carbide's neighbours with clean drinking water. In the absence of clean water, a new generation of people is being poisoned, medical relief organizations working in the area say.
A survey conducted in 2002 by health workers from the Sambhavna Trust Clinic found that 98 percent of the men surveyed and 95 percent of women were anaemic. According to Dhingra, trichlorobenzene -- one of the "Carbide chemicals" found in the drinking water -- kills blood cells and causes anaemia.
Internal documents unearthed as part of the original case in the New York District Court reveal that Union Carbide knew as early as in 1977 that the Bhopal plant posed a "danger of polluting subsurface water supplies in the Bhopal area." Much of the contamination is attributed to two soccer-field-sized solar evaporation ponds located outside the factory containing several years' worth of toxic sludge.
Union Carbide has said that it has handed over the property to the Madhya Pradesh State Government, and that the responsibility of clean up now lies with the state.
Union Carbide has failed to appear in the ongoing case in the Madhya Pradesh High Court. The company can evade liability because it does not have any direct assets in India. All its business in India is conducted through a subsidiary of Dow Chemical. Survivors allege that the Indian Government, which can enforce Carbide's appearance by going after Dow, is soft-pedalling because of pressure from the U.S. government.
A report of the U.S.-India CEO Forum, a high-profile coterie of top U.S. and Indian executives led by industrialist Ratan Tata, clearly highlights the lingering legacy of Bhopal as impacting Dow Chemical, and says that resolving this "would send a strong positive signal to U.S. investors."
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